Beware reactionary judges. Texas’ wedding law, for example.

Beware reactionary judges. Texas’ wedding law, for example. December 27, 2019

I’ve always loathed the word “conservative,” especially when applied to politics and the law.

To my mind, the “conservative” mindset guarantees that no matter how urgently things should change in society they tend to immovably remain the same.

Note that I am not a “lefty” or even generally “liberal,” whatever that might actually mean; in fact, I do appreciate some predictable guarantees in life while at the same time celebrating a certain communal fluidity.

I believe reason requires constant flexibility for adjusting to the vagaries of our always-evolving existence. Such as, at the moment, regarding abortion rights, tolerance toward same-sex coupling and, particularly relevant to this post, selecting who should be authorized to officially solemnize marriage vows.

A Texas lawsuit now wending its way through the court system — Center for Inquiry Inc. et al v. Warren — is a good case in point.

(The video embedded here is from the United Kingdom, but try to ignore the British accents and consider that evangelicals in Texas believe pretty much the same thing as the first man questioned by the host. One guy gives a good summary of what humanism is.)

The suit challenges a Texas law regarding who can legally conduct marriage ceremonies. The law specifically authorizes only marriage celebrants listed below:

(1) a licensed or ordained Christian minister or priest;

(2) a Jewish rabbi;

(3) a person who is an officer of a religious organization and who is authorized by the organization to conduct a marriage ceremony;

(4) a justice of the supreme court, judge of the court of criminal appeals, justice of the courts of appeals, judge of the district, county, and probate courts, judge of the county courts at law, judge of the courts of domestic relations, judge of the juvenile courts, retired justice or judge of those courts, justice of the peace, retired justice of the peace, judge of a municipal court, retired judge of a municipal court, associate judge of a statutory probate court, retired associate judge of a statutory probate court, associate judge of a county court at law, retired associate judge of a county court at law, or judge or magistrate of a federal court of this state;  and

(5) a retired judge or magistrate of a federal court of this state.

Looks reasonable, at a glance, as a list that would allow betrothed couples to choose among clergy from a variety of religious faiths or of ostensibly secular government officials to legalize their marriages.

The problem is, considering that more than 70 percent of Americans are Christian, and, particularly in bright-red, exceedingly Christian Texas, its highly probable that even most of the state’s supposedly secular government officials are also Christian.

So, if an engaged, say, atheist, couple wants to be married in a resolutely secular ceremony presided over by a decidedly nonreligious celebrant, their odds of finding one are presumably slim and, at best, promise a tortuously difficult needle-in-a-haystack exercise.

This was the gist of an original lawsuit filed against the Texas law by the Center for Inquiry (CFI), a secular nonprofit “dedicated to defending science and critical thinking in examining religion,” according to its website. A U.S. district court ruled against CFI in the suit in August.

Whereas, the Texas law does not explicitly discriminate against nonreligous celebrants as marriage solemnizers, it implicitly does. The proof of this pudding is why the state reflexively joined the fight to repel the Center for Inquiry suit.

I believe Texas’ defensive motivation is found in reasoning put forth in Indiana’s earlier Center for Inquiry, Inc. v. Marion Circuit Court Clerk case, which is referenced by the U.S. Northern District Court judges in the Texas suit. Indiana’s marriage celebrant law, which the district court found overly restrictive, excluded certain religious and nonreligious groups (e.g. Buddhists ad Humanists) from authorization to conduct marriages because they allegedly “do not treat marriage as a sacrament and do not have … an ‘organizational commitment to marriage.’”

If the Texas lawmakers who passed the state’s marriage solemnization statute were honest, I suspect this was probably at least partly their conscious or unconscious rationale. But rather than explicitly prohibiting certain non-Christians or nontheists from performing marriages, as the Indiana law did, Texas just left any hint of irreligious ideology out of the statute altogether — although the long list of government officials certainly sounds like they were allowing an appropriately secular space to nonreligious couples.

Except that two trained and certified secular celebrants in Texas — Eric McCutchan and Arthur Bratteng, co-plaintiffs in the Texas suit — were, in fact, denied the right to legally preside over marriages. Or, in other words, they could technically perform such ceremonies, but they wouldn’t “count,” as Mehta wrote in his Dec. 19 Friendly Atheist blog post.

The Texas federal district court ultimately ruled that the state’s marriage celebrant requirements were fine and did not violate the U.S. Constitution’s religious-freedom and church-state separation requirements in the First Amendment or its equal-treatment provisions.

U.S. District Judge Jane J. Boyle concluded in her decision:

“The fact that the Statute does not allow every secular individual trained to solemnize marriages to legally solemnize marriages in Texas does not make this statute unconstitutional. Instead, there is a rational basis for the Statute’s limitation based on both the historical practice of allowing judicial and religious officials to solemnize marriages, and because these individuals and their respective organizations can reasonably be expected to ensure the prerequisites to marriage are met and that the ceremony contains the necessary level of respect and solemnity without the need for significant involvement and oversight by the state.”

Which is to say that a “historical practice,” no matter how wrong-headed or manifestly unconstitutional or discriminatory in our republic, can get a legal pass in America. Make no mistake, this is the heart of conservative ideology.

What this means is, because mostly white, European Christians originally colonized the country — note that it will be only half-white later this century due to demographic changes — conservatives believe all unconstitutional religious practices our mostly Euro-Christian forefathers embedded in our state laws once upon a time are still valid and even sacrosanct (e.g. anti-blasphemy statutes).

This ignores the core of the plantiffs’ argument: that, whatever the history, structure and putative plain meaning of the Texas law, it blocks nonreligious celebrants from presiding over legally authorized weddings, which is very arguably irrational, actually. So, as I said before, the more society may change, these types of laws help ensure it remains much the same.

This is one reason to remain sharply apprehensive about all the ultra-conservative federal judges being feverishly seated on U.S. courts by the Christian Right-enslaved Trump administration. Imagine what may seem rational and constitutional to them — and thus be legally forced on the rest of us — moving forward.

CFI says it is appealing the latest verdict, The Friendly Atheist reports.

There is reason for optimism. The nonprofit’s lawyers have already been successful, through the courts or legislatures, in getting Oregon, Illinois and Indiana to legally authorize nonreligious marriage celebrants, and is trying to get Michigan and Ohio to do the same.

Fingers crossed.

Video/YouTube

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