Key point 3-04. All states permit clergy to perform marriage ceremonies. However, some states permit only “ordained” or some other classification of clergy to perform marriage ceremonies. It is important for clergy to determine if they are legally authorized to perform marriages under applicable state law, and in addition to be aware of the legal qualifications for marriage and any license and reporting requirements prescribed by state law.
Performance of Marriage Ceremonies
* A federal court in Utah upheld the validity of a state law barring ministers who are ordained over the Internet from performing marriage ceremonies. Ministers are authorized to perform marriages in every state. But sometimes the courts are asked to determine whether a particular individual qualifies as a "minister" authorized to perform marriages. Such was the question in a recent case. In 2001 the Utah legislature enacted a statute prohibiting ministers "ordained" over the Internet or through the mail from performing legal marriages. The statute reads, "Certification, licensure, ordination, or any other endorsement received by a person through application over the Internet or by mail that purports to give that person religious authority is not valid for the purposes of [performing marriage ceremonies]." Another state law specifies that "if any person not authorized solemnizes a marriage under pretense of having authority … he shall be punished by imprisonment in the state prison not exceeding three years."
A "mail order" church in California ordains anyone for free, for life, and without any faith requirements. Anyone can be ordained a minister in a matter of minutes by clicking onto the church’s website and by providing a name, address, and e-mail address. There is no oath, ceremony, or particular form required. The church keeps records of ordinations, but does not keep membership records or records of church rites such as baptisms, weddings, or funerals. One can also order other products to aid in the ministry, including a minister’s wallet credentials, blank press passes, a windshield placard, and the "ultimate wedding guide" book.
The church represents to its ministers that its ministers can perform rites and ceremonies, including weddings, and that they can ordain others into the ministry. The only limitation on ordinations is that a minister cannot ordain others without the church’s permission. The church requires virtually nothing from its ministers: they are not required to perform any religious ceremonies, to oversee a congregation, to provide religious guidance or counseling, to report religious ceremonies to headquarters, to keep in contact with the church other than routine address changes, or to attend any worship services.
A man ("Andy") was ordained by the church in 1993, and has performed several marriage ceremonies in Utah. After the state of Utah enacted the 2001 statute prohibiting ministers who are ordained over the Internet or through the mails from performing marriages, Andy filed a lawsuit challenging the law’s constitutionality. In particular, he argued that the statute violated the first amendment guaranty of religious freedom by meddling in a church’s decision as to who it would ordain as a minister. A federal court rejected Andy’s argument, and upheld the validity of the statute. The court concluded,
Nowhere [has Andy] demonstrated that being ordained through application over the Internet or through the mail is a religious belief, much less that it is sincerely held. Rather, the Internet and mail application procedures for becoming a minister is merely an administrative convenience to the [church]. Notably, the church does not require that its ministers be ordained through application through the mail or over the Internet. Indeed, individuals may apply for ordination over the telephone, in person by any other minister, or even by fax. The challenged statute does not dictate or control whom the church may choose to ordain—it may still ordain whomever it wishes. Moreover, the church is not prohibited from ordaining its ministers who send their applications through the Internet or by mail; however, those individuals would not have authority to solemnize marriages in Utah. In addition, the challenged statute does not force Plaintiffs to do anything contrary to their beliefs. Thus, the Internet statute applies to a secular activity that the state clearly has the power to regulate.
Application. State laws vary widely in defining those ministers who are authorized to perform marriages. Some states require that the minister be ordained; others require that the minister be either licensed or ordained; and others omit any specific reference to either licensure or ordination. Ministers should be sure to check their state law to be sure they meet the definition of a minister for purposes of performing marriage ceremonies. Your county recorder’s office often can help. Some states require ministers to register with a government agency before they are authorized to perform marriage ceremonies. Prior to performing marriage ceremonies, ministers should know whether or not such a requirement exists.
Another important question is the authority of a minister to perform marriages in another state. To illustrate, assume that a family wants its minister to perform a marriage ceremony for their child who is going to be married in another state. Is the minister authorized to do so? With the increasing mobility of American families, this is a question that frequently arises. The answer to this question will depend upon the law of the state in which the marriage will be performed. In many states, any minister is eligible to perform a marriage regardless of his or her state of residence. Other states have enacted laws authorizing nonresident ministers to perform a marriage within the state if they are legally authorized to do so in their state of residence. Some states impose limitations on the authority of nonresident ministers to perform marriages. Before agreeing to perform a marriage in another state, be sure to check with civil authorities in that state to be sure you are authorized to perform the marriage. Universal Life Church v. State of Utah, 2002 WL 87560 (D. Utah 2002).
Resource. For more information, see section 3-04 in Richard Hammar’s book, Pastor, Church & Law (3rd ed. 2000).
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