Indiana should not criminalize religious same-sex wedding ceremonies — even by accident Religious liberty protects the freedom of religious groups to conduct religious wedding ceremonies without government penalty, and that includes same-sex wedding ceremonies.
Ryan Colby 202-349-7219 firstname.lastname@example.org
Religious liberty protects the freedom of religious groups to conduct religious wedding ceremonies without government penalty, and that includes same-sex wedding ceremonies.
by: Eric Rassbach
There was a recent blogstorm about what was by some billed as a new legislative attempt to criminalize religious–but not civil–gay marriage in Indiana. It turned out that the purported change in law was related to a recodification of Indiana’s criminal laws rather than an intentional targeting of same-sex wedding ceremonies. And it is possible to interpret the law as only relating to civil marriage, not religious ceremonies.
But there is still a serious religious liberty problem. The Indiana law in question says that “A person who knowingly solemnizes a marriage of individuals who are prohibited from marrying by [Indiana’s law prohibiting same-sex marriage] commits a Class B misdemeanor.” The plain text of this law appears to criminally prohibit a member of the clergy from conducting a religious same-sex wedding ceremony. That’s because “solemnizes” is not defined in the Indiana statutes, and one of the word’s main dictionary meanings is conducting religious ceremonies. Indeed, many Christian denominations have long used the term “solemnization” to describe their wedding ceremonies. The law may well have borrowed the term from the Church of England’s Book of Common Prayer, which sets forth the liturgy for “Solemnization of Matrimony“.
That interpretation is backed up by the Indiana Supreme Court’s discussion of “solemnization” in the 2008 case of McPeek v. McCardle, in which the Indiana Supreme Court refers to the “solemnization” under Indiana’s marriage laws as the ceremony itself—in that case, a religious ceremony conducted by a minister.
That’s why any friend of religious liberty should be concerned about the Indiana law. Religious liberty protects the freedom of religious groups to conduct religious wedding ceremonies without government penalty, and that includes same-sex wedding ceremonies. It would be flatly unconstitutional for a prosecutor relying on the plain language of the Indiana law to seek a conviction of a minister for conducting a religious same-sex wedding ceremony.
More than that, just having the law on the books in its present form is a problem. Plainly unconstitutional laws that remain technically in force can still have a chilling effect on First Amendment activities. That is a particular danger here, since several different denominations conduct religious same-sex wedding ceremonies, including the United Church of Christ and some Conservative Jewish synagogues. The best way to solve this problem is to change the law—which the Indiana legislature should do by making clear that no one can be criminally punished for solemnizing a religious same-sex wedding.
Thus even though the Indiana law may be a case of criminalization by accident, proponents of same-sex marriage are still right to be concerned about the religious liberty of those who want to participate in same-sex weddings. One hopes that going forward they will also show the same solicitude for the religious liberty of those who cannot in good conscience participate in those same weddings. As many legal scholars from both sides of the debate have pointed out, adopting same-sex marriage without strong protections for religious dissenters will lead to a host of foreseeable conflicts, such as government penalties and private discrimination lawsuits. Ministers and churches should not be punished for solemnizing same-sex marriages, but neither should other ministers and other churches be punished for disagreeing with those same-sex marriages.
The reality is, both sides in the debate over the nature of marriage should support strong religious liberty protections, and they should make a point of supporting those protections for the people they disagree with. A good start would be by amending Indiana’s law.
Eric Rassbach is Deputy General Counsel at the Becket Fund for Religious Liberty
UPDATE: The word “purported” was added to this post to clarify that the specific provision criminalizing solemnization of same-sex marriages (Indiana Code 31-11-11-7) has not changed since 1997; the misdirected blogstorm referred to in the first paragraph concerned both what many wrongly thought were changes to both the solemnization provision and the fraud provisions concerning the submission of marriage license applications. As is explained in more detail here, only the latter provisions were actually amended as part of the recodification, and those amendments lowered the relevant criminal penalties.