Wow, that's interesting. I think vouchers are quite a bit different. Deb Widiss and I characterized civil marriage as a benefit in our piece in Penn. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1594361. And I stand by our arguments there -- you're right that understanding civil marriage as a benefit can be useful for understanding some problems, like the question of equal access for same-sea couples. But there are strong arguments that access to civil marriage performed by clergy is a fundamental right. So that's one difference with school vouchers. Also, doctrinally, the statute you suggest would run up against Hosanna-Tabor, at least insofar as the clergy's actions are governed by theology. But I'm actively thinking about all of this right now and may well change my view.
On May 7, 2015, at 12:10 PM, Marty Lederman <lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>> wrote: Thanks, Nelson. These really are quibbles, since we all agree -- I'm sure everyone on this list agrees -- that ministers are not about to be excluded from solemnizing marriages because they refuse to do so for same-sex or mixed-religion couples. Justice Kagan's "give me a break" response to Scalia was exactly right. Even so, I agree with Mike that there might be some value in us lawprofs trying to figure out precisely why that is--or at least which doctrines might need to be addressed. Norwood is not a state action case--that is to say, it's not a case about whether the private actors' conduct violates the Constitution because they should be "deemed" representatives of the state. It's a case about whether the state itself violates the Constitution when it knowing chooses to confer benefits on private discriminators. I think that neither theory of unconstitutionality is likely to be fruitful here -- but I do think it's important to distinguish between them, because they require different analyses. (As an example, we treated them very differently, to different effect, in the 2000 OLC memo.) More importantly, perhaps, I disagree with your First Amendment suggestion, for a reason that might be important across various free exercise contexts. Let's say a state did decide to grant "solemnization" licenses only to those persons who agree not to discriminate against any couples on the basis of race, religion or sexual orientation. You suggest that such a state law would be unconstitutional as applied to clergy "who had theological reasons for declining to officiate at certain weddings." I don't think so. Of course the state can't stop the clergy from performing religious marriage ceremonies. But I think if could make nondiscrimination a condition for obtaining the state benefit of a state "solemnization" license, in the same way a state can insist that vouchers be used only at schools that do not discriminate against students on such grounds. On Thu, May 7, 2015 at 11:43 AM, Nelson Tebbe <nelson.te...@brooklaw.edu<mailto:nelson.te...@brooklaw.edu>> wrote: Marty: I'm not sure there is any distance between you and Mike, even after reading your last post. Mike said there may well be circumstances under which state action could be found -- circumstances like the ones present in Norwood, perhaps -- but that shouldn't be a reason for the Court to rule against marriage equality in the pending cases. I don't read you to disagree with that. I also believe that, with respect to Justice Scalia's actual question about clergy, there likely are First Amendment protections. You can see that by imagining a state that voluntarily prohibited discrimination by wedding officiants who are licensed to perform civil marriages. That sort of state statute likely would run afoul of First Amendment protections for clergy, at least for those who had theological reasons for declining to officiate at certain weddings. Nelson On May 7, 2015, at 9:17 AM, Marty Lederman <lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>> wrote: Mike Dorf responds: I completely agree with Marty that there could be some circumstances in which a particular deputization by the state would itself violate EP and more generally the state action analysis is not airtight. That's why I referred to it as "more promising" rather than a slam dunk. There are many more subtleties than those I was able to address in the column. Nelson Tebbe and I will be working on a more academic paper expanding and refining my preliminary analysis. Much as I hate to quibble when Mike professes "complete agreement" with me . . . I'm not sure we are in complete accord. There are, I think, at least two distinct equal protection questions: 1. Are the licensed "solemnizers" state actors? They would be if they were "deputized" by the state, as Mike suggests; but I doubt they are so "deputized." Instead, they are merely licensed to do something that is a precondition for someone else obtaining a legal status--which, as Mike's column suggests, makes them, in a sense, akin to the private schools at which vouchers are used. Nothing about state action doctrine is ever "airtight," but I don't think this one would be a particularly tough, or controversial, case, at least under post-1970 precedents. 2. As the 2000 OLC opinion explains, the harder question is not the constitutionality of the minister's own discrimination (which is not state action), but instead the decision by the state itself to "license" the minister to perform a private function that will have legal effect, knowing that the minister will engage in discriminatory conduct that would be off limits to the state itself. Again, cf. Norwood. Assuming, however, that the state will give a "solemnization" license to just about anyone, without regard to any subjective, discretionary criteria, then I strongly doubt the Court would ever prohibit the state from granting licenses to ministers who discriminate on the basis of religion or sexual orientation. That would be akin to prohibiting New Mexico from conferring a business license upon Elane Photography--i.e., it's virtually inconceivable. On Thu, May 7, 2015 at 7:57 AM, Marty Lederman <lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>> wrote: Sorry for posting before searching. According to this recent student comment -- http://law.emory.edu/elj/_documents/volumes/63/4/comments/stevens.pdf -- "in almost every state, a solemnization ceremony is necessary for a valid marriage." Putting to one side the question of whether there's any constitutional problem in requiring "solemnization," my initial thought is to agree with Mike that just because (i) solemnization is a condition precedent to receipt of a marriage license and (ii) the state also only permits "licensed" persons to solemnize, that does not mean that such "solemnizers" become state actors. On the other hand, it does raise at least the theoretical question of whether it is constitutionally permissible for the state itself to afford a "solemnizing" license to particular private individuals in cases where the state knows that such individuals will discriminate on a basis (e.g., religion, race, sexual orientation) that would be off limits to the state itself if the state were performing the solemnizing function. This is akin to the familiar questions of whether the state can provide vouchers to schools/social service organizations that discriminate against employees or students or beneficiaries on the basis of race or religion. Cf. Norwood v. Harrison (state is prohibited from giving schoolbooks to racially discriminatory schools, even pursuant to generally available program). See pages 20-25 & n.55 of http://balkin.blogspot.com/olc.charitablechoice.pdf. On Thu, May 7, 2015 at 7:37 AM, Marty Lederman <lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>> wrote: Mike Dorf (https://verdict.justia.com/2015/05/06/why-can-clergy-opt-out-of-same-sex-marriage) on the question Justice Scalia asked about whether ministers would be able to discriminate against same-sex couples when they are vested with the power of the state to "officiate" weddings: A more promising approach might be to deny the first premise of Justice Scalia's puzzle. Perhaps when the government recognizes the validity of religious wedding ceremonies it should not be understood as deputizing the clergy who officiate at those ceremonies. Rather, the state recognizes wedding ceremonies regardless of whether a public official (like a judge or justice of the peace) officiates or a clergy member officiates, and if the latter, regardless of the tenets of the particular faith. In this view, according state recognition to all manner of religious wedding ceremonies as well as to civil ceremonies is permissible in much the same way that government vouchers for private education are valid even if large numbers of parents use those vouchers to send their children to parochial schools-and even if the curricula at those parochial schools include messages that would violate the Establishment Clause if pronounced by the government itself. In doctrinal terms, state recognition of religious wedding ceremonies does not necessarily turn the presiding clergy into state actors. I'm curious: Are even Mike's premises (see bolded phrases) accurate? Do states actually "deputize" clergy and others to engage in any state action? To be sure, the standard trope is "By the power vested in me by the State of X, I hereby pronounce you . . . ; but does the state actually vest the officiant with any "power"? For that matter, does the wedding "ceremony" have any bearing on marital status, or any other aspect of state law? Do states "recognize" ceremonies (or their "validity"), as such? Don't most or all jurisdictions confer marriage licenses without the requirement of any ceremony whatsoever? That is to say: Is it possibly the case that marriage ceremonies have nothing to do with civil marriage under the law? I probably should know the answers to these questions already, but I don't . . . so any insight you all might have would be greatly appreciated. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
