4 ms·

"Congress shall make no law respecting an establishment of religion, ..."[0] Why would the state be deciding who is qualified to be an officiant? For civil pu

by dmckeon 11y ago

"Congress shall make no law respecting an establishment of religion, ..."[0] Why would the state be deciding who is qualified to be an officiant? For civil purposes, think of the officiant as an additional witness or co-signer of the license - more like a notary public or master/mistress-of-ceremony than as someone designated by some external entity to perform weddings. For religious purposes, consult your entity, or their designee. [0] currently contested in Rowan County, Kentucky, sigh.

MRPockets 11y ago
The answer lies in your question. State =\= Congress.
- bbanyc 11y ago
  The 14th Amendment has been held to apply the First Amendment against the states. And even in the likely event that incorporation gets overturned, most state constitutions have their own establishment clauses.
- dmckeon 11y ago
  What bbanyc said, for details see: https://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights https://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_R... and http://leg.wa.gov/LawsAndAgencyRules/pages/constitution.aspx http://leg.wa.gov/LawsAndAgencyRules/pages/constitution.aspx
jonah 11y ago
My proposed solution to the whole mess is to separate the Marriage and the Partnership. Let people get Married in accordance with their religious or social practices as they desire but it holds no legal standing. Then, have the State offer some sort of Partnership entities ("Domestic Partnership"?) like an LLP or Corporation that handles the financial and legal responsibilities of the union. People could choose to engage in one or the other or both, but they're separate things. It seems like it'd solve a lot of the conflicts we're seeing.
geofft 11y ago
> establishment of religion If you're going to quote the First Amendment, it's worth knowing what it says. An "establishment of religion" is a state church, like the Church of England -- the example the framers had in mind, the cause of lots of settlement in the colonies, and an institution that the British monarch is still head of today. Half of the House of Lords are "Lords Spiritual." The coronation ceremony involves an Anglican mass. And it's more than just ritual: as late as 1936, Edward VIII abdicated the crown because he wanted to marry a divorcee, and it was inappropriate for the leader of the Church of England to go against its teachings. Or take Finland, where the two state churches (the Evangelical Lutheran one and the Orthodox one) facilitate government records of population, in the equivalent of the census, and members of either church (you have to resign membership by a legal process) and also corporations pay a church tax. Or Denmark, whose constitution states, "The Evangelical Lutheran Church shall be the Established Church of Denmark, and as such shall be supported by the State." Or any number of other European countries with church taxes or established churches -- not to mention other parts of the world, such as the Islamic republics. The state authorizing religious ministers of scores of denominations to officiate marriages in addition to justices of the peace is not, in any sense, an "establishment of religion."
- dmckeon 11y ago
  > The state authorizing religious ministers of scores of denominations to officiate marriages in addition to justices of the peace is not, in any sense, an "establishment of religion." Let's consider that a state (nation-state or US state) might recognize 0, 1, or N religions. There are many nation-states with 1 or N state-recognized religions, as you point out, but a US state that recognizes any number of religions other than 0 is effectively, in many senses, establishing that set of religions, and excluding any others. Officiating at weddings is a very light-weight form of recognition compared to tax exemptions, or to religious requirements to hold public office. My preference for the US would be to keep government out of religion, and religion out of government, keeping that number at 0.
  - geofft 11y ago
    > There are many nation-states with 1 or N state-recognized religions, as you point out No, I'm taking about state religions, not merely state-recognized religions. These are different. There's only one established religion in the UK, the Church of England, but it is absolutely possible to have your marriage officiated by a non-Anglican or even non-Christian minister. It would be completely wrong to claim that the Roman Catholic Church has been an established church in the UK ever since the Marriage Act 1836 allowed its priests to officiate marriages, or that the CoE is now disestablished because the CoE doesn't permit gay marriage but gay couples can get legally married in other churches. Finland is another example; there are exactly two state churches but dozens of "registered" churches where one may marry. There is, of course, an extension to be read into that part of the Constitution about not favoring a church in governance; it's sort of the same way the Constitution has an unwritten right to privacy. But you can only read it in so far. It is not a constitutional prohibition on the recognition of churches, just on the establishment of churches. That word had a very specific meaning separate from "recognition" in 1789; it is a testament to the success of that amendment that we in the US have forgotten what it means. It is worth noting that while everyone who wrote that amendment was still around and deeply involved, Congress wrote this resolution (http://memory.loc.gov/ll/llac/001/0000/00160025.gif http://memory.loc.gov/ll/llac/001/0000/00160025.gif): "Resolved, that after the oath shall have been administered to the President, he, attended by the Vice President, and members of the Senate, and House of Representatives, proceed to St. Paul's Chapel, to hear divine service, to be performed by the Chaplain of Congress already appointed." And nobody thought that respected an establishment of religion. (This is not to say, btw, that I personally agree with all of our current policies. I'd very much like to see us further disentangle legal marriage from religious marriage. I just don't think we have anything close to a Constitutional obligation to do so, and we should do so because we the people want to. Being fortunate enough not to have an established church, we also have no Constitutional obligation to stick with the present system, either.)

by dmckeon 11y ago

MRPockets 11y ago

The answer lies in your question. State =\= Congress.

bbanyc 11y ago
The 14th Amendment has been held to apply the First Amendment against the states. And even in the likely event that incorporation gets overturned, most state constitutions have their own establishment clauses.
dmckeon 11y ago
What bbanyc said, for details see: https://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights https://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_R... and http://leg.wa.gov/LawsAndAgencyRules/pages/constitution.aspx http://leg.wa.gov/LawsAndAgencyRules/pages/constitution.aspx

jonah 11y ago

My proposed solution to the whole mess is to separate the Marriage and the Partnership. Let people get Married in accordance with their religious or social practices as they desire but it holds no legal standing. Then, have the State offer some sort of Partnership entities ("Domestic Partnership"?) like an LLP or Corporation that handles the financial and legal responsibilities of the union. People could choose to engage in one or the other or both, but they're separate things. It seems like it'd solve a lot of the conflicts we're seeing.

geofft 11y ago

> establishment of religion If you're going to quote the First Amendment, it's worth knowing what it says. An "establishment of religion" is a state church, like the Church of England -- the example the framers had in mind, the cause of lots of settlement in the colonies, and an institution that the British monarch is still head of today. Half of the House of Lords are "Lords Spiritual." The coronation ceremony involves an Anglican mass. And it's more than just ritual: as late as 1936, Edward VIII abdicated the crown because he wanted to marry a divorcee, and it was inappropriate for the leader of the Church of England to go against its teachings. Or take Finland, where the two state churches (the Evangelical Lutheran one and the Orthodox one) facilitate government records of population, in the equivalent of the census, and members of either church (you have to resign membership by a legal process) and also corporations pay a church tax. Or Denmark, whose constitution states, "The Evangelical Lutheran Church shall be the Established Church of Denmark, and as such shall be supported by the State." Or any number of other European countries with church taxes or established churches -- not to mention other parts of the world, such as the Islamic republics. The state authorizing religious ministers of scores of denominations to officiate marriages in addition to justices of the peace is not, in any sense, an "establishment of religion."

dmckeon 11y ago
> The state authorizing religious ministers of scores of denominations to officiate marriages in addition to justices of the peace is not, in any sense, an "establishment of religion." Let's consider that a state (nation-state or US state) might recognize 0, 1, or N religions. There are many nation-states with 1 or N state-recognized religions, as you point out, but a US state that recognizes any number of religions other than 0 is effectively, in many senses, establishing that set of religions, and excluding any others. Officiating at weddings is a very light-weight form of recognition compared to tax exemptions, or to religious requirements to hold public office. My preference for the US would be to keep government out of religion, and religion out of government, keeping that number at 0.
- geofft 11y ago
  > There are many nation-states with 1 or N state-recognized religions, as you point out No, I'm taking about state religions, not merely state-recognized religions. These are different. There's only one established religion in the UK, the Church of England, but it is absolutely possible to have your marriage officiated by a non-Anglican or even non-Christian minister. It would be completely wrong to claim that the Roman Catholic Church has been an established church in the UK ever since the Marriage Act 1836 allowed its priests to officiate marriages, or that the CoE is now disestablished because the CoE doesn't permit gay marriage but gay couples can get legally married in other churches. Finland is another example; there are exactly two state churches but dozens of "registered" churches where one may marry. There is, of course, an extension to be read into that part of the Constitution about not favoring a church in governance; it's sort of the same way the Constitution has an unwritten right to privacy. But you can only read it in so far. It is not a constitutional prohibition on the recognition of churches, just on the establishment of churches. That word had a very specific meaning separate from "recognition" in 1789; it is a testament to the success of that amendment that we in the US have forgotten what it means. It is worth noting that while everyone who wrote that amendment was still around and deeply involved, Congress wrote this resolution (http://memory.loc.gov/ll/llac/001/0000/00160025.gif http://memory.loc.gov/ll/llac/001/0000/00160025.gif): "Resolved, that after the oath shall have been administered to the President, he, attended by the Vice President, and members of the Senate, and House of Representatives, proceed to St. Paul's Chapel, to hear divine service, to be performed by the Chaplain of Congress already appointed." And nobody thought that respected an establishment of religion. (This is not to say, btw, that I personally agree with all of our current policies. I'd very much like to see us further disentangle legal marriage from religious marriage. I just don't think we have anything close to a Constitutional obligation to do so, and we should do so because we the people want to. Being fortunate enough not to have an established church, we also have no Constitutional obligation to stick with the present system, either.)