A federal District Court judge heard arguments Monday in a lawsuit filed by the American Civil Liberties Union challenging a Nevada law requiring that nongovernmental officials be affiliated with a church or religious organization in order to perform marriages.
The ACLU brought suit in March on behalf of two members of the American Humanist Association, Raul Martinez and Michael Jacobson, who said they were denied certificates to perform marriages because they are not affiliated with a religious organization.
In its complaint against both the state of Nevada and Clark County, where Martinez and Jacobson reside, the ACLU said the state’s religious requirement violated both the First Amendment’s prohibition of establishment of religion, and the 14th Amendment’s guarantee of equal protection under the law.
Nevada Attorney General Catherine Cortez Masto asked that she be dismissed from the lawsuit because her office does not enforce the state’s marriage law, leaving that up to Clark and other counties. That left Clark County Deputy District Attorney Michael Foley to defend the state’s marriage law before Judge Philip Pro in Las Vegas.
Asking Pro to dismiss the ACLU-backed challenge, Foley told the court that the county and state have a compelling interest in ensuring that marriages are legitimate and conducted properly. “If you allow every Elvis impersonator to go around marrying people,” he said, “you’re going to have some problems with paperwork and so forth.”
The Clark County deputy DA made the case that participation of religious officials in marriages is a tradition that predates the Bill of Rights. He also argued that the issue of who should and should not be able to officiate weddings should be left to the state legislature, and not the courts.
Under Nevada law, marriages can be solemnized by government officials, including judges and civil marriage officials. It also sanctions marriages performed by clergy and others associated with churches and religious organizations.
Because Martinez and Jacobson are not governmental officials, and because the American Humanist Association is not considered a religious organization by the state of Nevada, the plaintiffs were not certified to conduct weddings.
As such, the ACLU maintained in its court brief, the state law unconstitutionally advances “religion by providing religiously affiliated individuals a certain degree of standing within the political community, while also sending a message to non-religiously affiliated individuals that they are outsiders from the political community, not worthy of the privileges available to religious individuals.”