Purple Prose Aside, Oklahoma Did Not Limit Marriage to People of Faith

Purple Prose Aside, Oklahoma Did Not Limit Marriage to People of Faith March 20, 2015
Rep Todd Russ, Oklahoma House File Photo
Rep Todd Russ, Oklahoma House File Photo

My former colleague, Representative Todd Russ, recently passed a piece of legislation, HB 1125 that would move issuance of Oklahoma marriage licenses from court clerks to clergy or judges.

Under Oklahoma law as it presently stands, court clerks, who are elected officials, issue marriage licenses.

I think that the bill is a response to lawsuits against court clerks around the country who have not issued marriage licenses for gay marriage due to their religious belief. It appears to be an attempt to remove that pressure from court clerks. According to both the author and representatives who opposed the bill, court clerks have not objected to the legislation.

During floor debate, Democratic Leader Scott Inman raised the question of whether or not the bill would, as an unintended consequence, open the door for “marriage” of any type, including group marriage, polygamy, marriage between humans and animals, etc. Rep Russ answered that HB 1125 does not change regulations as to what constitutes legal marriage.

I think that Representative Russ made an attempt to deal with a problem. I don’t think that this piece of legislation does what he hopes. It has huge holes in it. It also transfers the potential for court challenges and judicial pressure from court clerks to the clergy.

There is no definition of clergy in the bill. This piece of legislation, by creating a whole new legal responsibility for clergy, needs a definition for what constitutes clergy that is specific to the legislation.

As it stands now, the only requirement in the law is that the clergy be “ordained.” That leaves the definition of what constitutes clergy for the purposes of performing this government function entirely in the hands of the religious body of which they are a part.

Since “ordained” is not defined in the bill either, any person could, for the purposes of this law, “ordain” themselves. I am aware that there are definitions in other places in the statutes. But since this creates a new kind of clergy that is part government functionary and part religious leader, a new definition is called for.

Another serious problem with the legislation is that it does not define what relationship the clergy would hold vis a vis the government. Are they now government officials, rather than clergy? That is a legitimate question, since they are now charged with enforcing state law concerning marriage so far as it pertains to the issuance of marriage licenses.

America has kept the issuance of marriage licenses and the definition of marriage as a legal construct entirely under the auspices of the government for over 200 years. The idea of transferring this to clergy is a radical change with many unintended consequences.

One unintended consequence would be the massive impact that this change would have on arguments concerning religious freedom. I believe strongly that clergy should not be government officials by virtue of their ordination. If we make them that, we also make them subject to the same oversight and control as any other government functionary.

Statutes that make all ordained clergy function as government opens clergy and faith to government regulation. It transfer the court challenges and pressure being brought against court clerks to clergy. It pierces the protected legal status that clergy holds now.

This legislation, which I think is a good-faith attempt to deal with a serious problem, will, in a few years, create other problems concerning attempts to limit religious freedom that will be exceedingly grave. It has the potential to create a religious freedom train wreck.

HB 1125 has been the object of quite a bit of purple prose, both in the mainstream press and in the blogosphere. This includes claims that Oklahoma has done away with marriage licenses, or that the bill would limit marriage to people of faith. 

These claims are not accurate. The bill changes how marriage licenses are issued. It does not do away with them. Any one who wants to get legally married in Oklahoma today would be able to get legally married under this bill if it becomes law.

I’m not sure how to handle the problems we are now facing as a result of the nihilism that is being applied to family law in this country. If I was still a legislator, I would have voted against this particular bill for the reasons I give above.

My greatest concern about the bill is that it would change the legal status of clergy and that would create the means for successfully attacking religious freedom in the future. It does not matter if the bill labels clergy government functionaries or not. If this bill becomes law, that is the function they will be performing.

I have no doubt that future civil challenges would use this law to seek to define clergy as government functionaries through the courts. This law creates a means by which clergy can be subjected to government regulation as civil authorities.

In today’s political climate, that would be a disaster for religious freedom in this country. Groups have been attempting to control what clergy preaches for decades. This law hands them the means to do that. It would also open the doorway for legitimate court challenges requiring clergy to perform gay marriages (and other inventive forms of “marriage”) even if it violates the teachings of their faith.

You can read the version of the bill that passed the House here.

 

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25 responses to “Purple Prose Aside, Oklahoma Did Not Limit Marriage to People of Faith”

  1. Question, why is there suddenly a religious freedom concern about court clerks marrying people now that there is gay marriage. I understand that some court clerks may religiously oppose gay marriage, believe that homosexual marriages are not legitimate in the eyes of God etc etc. But what happened to those concerns with divorce? What if a court clerk believes that someone who’s been divorced should not remarry? Does the court clerk have the right to decide not to remarry someone who’s been divorced? Or have we politically as Christians been fully willing to check our beliefs at the door when it comes to divorce but we for some reason arn’t willing to do the same thing with gay marriage?

    • I think that in Oklahoma, granting of divorces is a matter for the courts, rather than the court clerks. I don’t believe anyone applies for a license to divorce with the court clerk’s office.

      • Kirk means that a clerk who refuses to issue a license to a same sex couple for religious reasons should also refuse to issue one for divorcees geting married since Jesus was far more explicit in admonishing them and never said anything specifically about same sex partners.

          • You are not understanding the scenario. According to your beliefs, people who divorce and remarry without an annulment commit adultery. If you were a clerk who issues a marriage license to a divorcee but not to a same sex couple then you would be condoning adultery while condemning same sex marriage. There is just as much wrong with issuing a marriage license to the divorcee(s) making you a hypocrite.

            • There’s no question about prior marriages on the marriage license applications I’ve seen. You’re reaching and refining, trying to support your position. Why not try another analogy before you fall completely flat on your face?

              • If same sex marriage is legal, no one whose job it is is to issue marriage licenses should be allowed to remain in that job if they refuse to issue licenses to same sex couples just because their religion prohibits them from homosexual acts. If their religion also prohibits them from divorcing and remarrying, wouldn’t their conscience require them to make sure they don’t issues licenses to divorcees as well? They can’t have it both ways. If they issue licenses to divorcees but refuse to do the same for gays for religious reasons, that is discrimination which is illegal. Jesus specifically spoke out against divorce but said nothing about homosexuality.

  2. “This legislation, which I think is a good-faith attempt to deal with a serious problem,..”

    It is a good way for a politician to be a hack and try to wreek havoc for the sole purpose of increasing his name recognition in a state that has conservative Christian values that are out of step with this modern world.

    And what exactly is the problem? Clerks should just do their job and not adjudicate the morality of the licensees.

    • I’m going to allow this as a teaching device. Do not call people names. That includes politicians. Talk about what you dislike about the legislation all you want, but use the thinking part of your brain.

    • SH, why do you think you should be able to tell clerks or anybody else with different values than yours what to do? You criticize Christian values and yet you want to dictate to Christians how to behave.

  3. I think we need to completely secularized the process. In most countries you go to the Registrar and have a civil ceremony of one kind or another. Then you can go to the Church if you choose. Our system derives from English tradition where CoE is part of the state.
    My daughter and son in law were married in e Church in Austria, but had a Friday afternoon civil ceremony with a family court judge because they needed that document for the Church. Works fine.

  4. I have a few issues with this legislation, the first being that, as I read it, the bill would free a state employee from having to grant a marriage license to a gay couple in the morning, and yet force that same state employee to officially register that same gay marriage in the afternoon.

    In my view, the legislation is form over substance and a waste of the taxpayer’s money.

  5. As I read Section 7 the bill, Christian ministers, Rabbis, and the Baha’i would be the only religious folk authorized to solemnize marriages in Oklahoma under this bill.

    If I were an Oklahoman Muslim or Hindu, I’d be pretty upset about that.

    From my reading, there are two types of religious folks authorized:

    “an ordained or authorized preacher or minister of the Gospel, priest or other ecclesiastical dignitary of any denomination who has been duly ordained or authorized by the church to which he or she belongs to preach the Gospel, or a rabbi and who is at least eighteen (18) years of age.”

    Note well – Only Christians or Jews – the ‘other’ category here specifically references being authorized to preach the Gospel.

    or:

    “Marriages between persons belonging to the society called Friends, or Quakers, the spiritual assembly of the Baha’is, or the Church of Jesus Christ of Latter Day Saints, or other assemblies which have no ordained minister, may be solemnized by the persons and in the manner prescribed by and practiced in any such society, church, or assembly.”

    The ‘other’ category here only applies to those that do NOT have ordained ministers.

    So, again, note well – if you are ordained clergy in a faith OTHER than Christianity or Judaism, you would not be allowed to solemnize a marriage in Oklahoma under this bill.

    If anyone would care to point out where I’m mistaken, I would be glad of the correction.

    • Section 7 is existing law. It is a standard and inclusive definition that takes in people of all faiths. Note phrases such as “of any denomination.

      I repeat: This language is existing law. It is not being changed by this bill. The bill is amendatory and it is not amending this language.

      “… marriages must be contracted by a formal ceremony performed
      ENGR. H. B. NO. 1125 Page 8
      1 or solemnized in the presence of at least two adult, competent
      2 persons as witnesses, by a judge or retired judge of any court in
      3 this state, or an ordained or authorized preacher or minister of the
      4 Gospel, priest or other ecclesiastical dignitary of any denomination
      5 who has been duly ordained or authorized by the church to which he
      6 or she belongs to preach the Gospel, or a rabbi and who is at least
      7 eighteen (18) years of age.”

      • “Of any denomination” in line 4 is followed by “who has been authorized to preach the Gospel” in line 6.

        The language is clear. Section 7 that you quote authorizes Gospel preachers and Rabbis only.

        • I repeat: Section 7 is existing law.

          I gather you want to find something in the bill to dislike. There are many things you can use for that purpose. This is not one of them.

          I’m not going to repeat myself all day, reading the bill to you. If you don’t get it, you don’t.

          • Madame, I assure you that I understand that Section 7 is existing law and also assure you that I am not looking for something to dislike about the proposed law since I am, by the Grace of God, a Texan and not an Oklahoman and as such will not be affected by the law in the unlikely event that it passes..

            However, I do consider myself to be a reasonably literate person and it seems to me that ENGR. H. B. NO. 1125 Page 8, lines 1 through 7 references judges, Gospel preachers and Rabbis.

            Is there some sort of legal fiction at work here that would include a Muslim Imam under the rubric of ‘other denomination duly ordained to preach the Gospel’?

            Is it possibly the case that the phrase “The Gospel” here means not the Christian Gospel, but rather is being used as a generic term for “whatever the religious guy says while he is preaching”?

            I don’t mean to be difficult, but in my experience, Gospel means something specific to Christianity.

            • I apologize for being so short wit you yesterday. I wasn’t feeling well.

              To be honest, your line of reasoning is so far off in the weeds, I thought you were deliberately being a jerk. I forget sometimes that reading legislation is a skill and that what, after 18 years of reading legislation one bill after the other all day long, is second nature to me, is like speaking Swahili to most people.

              I’m not sure how to explain this to you. In fact, given that I don’t feel all that good today, either, I’m not sure I have the energy to try.

              Let’s just say this. You are attempting to read this piece of legislation they way you might read a blog post. That will inevitably lead you where you are now: at the point of utter confusion.

              This particular piece of legislation is a small bit of amendment to a larger statute, which in turn references other statutes that are not specifically written out in the bill. It also exists in a web of case law that is not specifically written out in the bill.

              The portions of what you are reading that actually apply to the proposed change in the law that amount to the legislation at hand are only a paragraph and a couple of sentences. All the rest of it is existing law.

              Specifically, section 7 is existing law. What that means in simple terms is that yes, Muslim Imams are included in it. They are operating under this statute as full members of the clergy today. They operated under it yesterday. They will continue to do so tomorrow.

              Muslim Imams are clergy in Oklahoma under existing law.

              I don’t know what phraseology Texas law uses, but I wouldn’t be surprised if it was something much like this for the simple reason that statutes that accomplish the same ends often use similar wording.

              I doubt that I’ve cleared this up one bit. But I am certain that I don’t want to try to explain it anymore today. I just don’t have enough gas in my tank. I hope this clarifies. If it doesn’t, I’ll try again in a day or so when I feel up to it.

          • Hi Rebecca. I think I see John’s point as well as yours, and maybe its a fair point.. I believe John is saying that as he parses Section 7 of the statute there are only 3 types of persons who may “perform or solemnize” a marriage ceremony in OK:

            a. an ordained or authorized preacher or minister of the Gospel,

            b. [a] priest or other ecclesiastical dignitary of any denomination who has been duly ordained or authorized by the church to which he or she belongs to preach the Gospel, or

            c. a rabbi.

            To his point, a Muslim Imam (for example) is none of a, b or c.

            New York’s statute, by contrast, expressly permits “a clergyman or minister of any religion” to perform the ceremony.

            I believe your point (i’m guessing a bit here) is that the statute in OK has never been so construed to prohibit an Imam (or a Buddhist priest, etc) from performing a wedding ceremony, so this Section 7 doesnt really change actual practice.

            But John’s plain reading of the OK statute makes some sense. Or do I need more coffee?

            • That’s a good analysis.

              I don’t think laundry list statutes such as the one you describe are well written. While they may be an attempt to be self-conciously inclusive, they are always in actual practice exclusionary. The minute laws start listing specifically who is “in,” they are automatically defining anyone who isn’t listed as “out.” In fact, that’s kind of what John is trying to say about this statute.

              This particular statute does not limit the definition of clergy to people on a list. It is inclusive in a broad sense. It gives a couple of examples and then includes a broad over term that is vastly inclusive.

              Statutes should rely on definitions like this that allow for flexibility. New York law may do this, but that is not what you are describing.

  6. Hi Rebecca, I’m so sorry you aren’t feeling well and am sorry for any unpleasantness I may have caused you. And thank you, pesq87 for your elaboration, which succinctly summarizes the points I was trying to make.

    Texas Statutes read as follows:

    2.202 PERSONS AUTHORIZED TO CONDUCT CEREMONY

    (a) The following persons are authorized to conduct a marriage ceremony:

    (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; and

    (4) [judges]

    I will defer to your legislative expertise on the Section 7 issue. I don’t see it myself, as it looks to me like the ‘other’ category there is restricted to preachers of the Gospel in a way that the Texas 2.202(a)(3) is not.

    Perhaps that question is part of the ‘case law’ you mention – in that it is clear that an attempt to restrict Imams based on a strictly literal reading would fail, but nobody is interested in re-writing the law just to preclude the possibility. And so, in practice, legislators and lawyers gloss over the wording so that the ‘oh yeah, those guys too’ is simply taken as read.

    I have to wonder if these sorts of wordings don’t hearken back to days of yore a hundred years ago when Christianity and Judaism were the only games in town and there was some sort of interest in keeping laypeople from officiating at marriages.

    These days, a person can send five bucks to the Universal Life Church and get a certificate of ordination that works just fine.

    Get better soon, Rebecca.

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