Atheists sue over Texas law banning Secular Celebrants from solemnizing marriages

It's the second time the Center for Inquiry has attempted to overturn this Texas law

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The Center for Inquiry has filed a federal lawsuit hoping to overturn a Texas law that bans Secular Celebrants from performing marriage ceremonies.

(Image via Adobe Spark)

In doing so, CFI hopes to achieve the same kind of victories they’ve seen in Oregon (legislatively), Illinois (via lawsuit), and Indiana (also via lawsuit). Michigan now also allows Secular Celebrants to officiate weddings.

But Texas has been resistant to calls for change.

The relevant part of the state’s law can be found in Section 2.202:

(a) The following persons are authorized to conduct a marriage ceremony:

(1) a licensed or ordained Christian minister or priest;

(2) a Jewish rabbi;

(3) a person who is an officer of a religious organization and who is authorized by the organization to conduct a marriage ceremony; and

(4) a current, former, or retired federal judge or state judge.

…

(c) Except as provided by Subsection (d), a person commits an offense if the person knowingly conducts a marriage ceremony without authorization under this section. An offense under this subsection is a Class A misdemeanor.

In short, unless you want a judge to marry you, your only options are a priest, rabbi, other religious leader… or, as many atheists may have opted for in the past, someone ordained by an online church with the help of a credit card and two minutes of time.

There’s just no good reason to deny Secular Celebrants the same opportunity especially when, through CFI, they can only obtain that title after going through a training.

The lawsuit is on behalf of Eric McCutchan, a Tarrant County resident who has been a Secular Celebrant since 2014. He “wishes to conduct marriage licenses for those seeking a non-religious marriage ceremony in Texas, but due to the state’s laws, cannot legally perform this service,” the lawsuit explains. If he does, he could be charged with a crime.

That’s why the defendants include Tarrant County Clerk Mary Louise Nicholson and Tarrant County District Attorney Phil Sorrells. Nicholson, CFI says, “has not and will not record licenses returned by secular celebrants.” Sorrells is the person who could bring criminal charges against McCutchan if he tried to solemnize a ceremony.

CFI also makes clear that its members want people like McCutchan to perform their ceremonies because the supposedly secular alternatives are non-starters for them:

A ceremony solemnized by secular elected officials is often not an acceptable alternative for any number of reasons, including limitations on the time and place ceremonies may occur, the risk of the inclusion of religious concepts and language in the ceremony contrary to the couple’s desires, the aversion to the governmental overtone that the elected official’s presence carries, and the anonymity of the official who typically will not know the couple personally and therefore unable to construct a service which expresses the couple’s values and personalities.

That’s why CFI is demanding the law be modified:

CFI general counsel Richard Conn said, “Human rights are universal and should not be predicated on one’s religious belief or nonbelief. Requiring religious affiliation in order to celebrate a marriage in Texas—and imposing criminal penalties on those who would choose otherwise—turns nonbelievers into second class citizens. We believe this statutory requirement is unconstitutional and must be changed.”

Interestingly enough, this not CFI’s first attempt to get this law changed. Nor is it McCutchan’s. In 2018, they sued Dallas County for identical reasons. But that lawsuit was ultimately dismissed in 2019.

At the time, U.S. District Judge Jane J. Boyle (a George W. Bush appointee) said the law, as written, was constitutional and CFI had no business arguing otherwise. She specifically looked at the various tests the Supreme Court has used for determining a law’s constitutionality if it involved religion.

There was the (now dismantled) Lemon Test, which asked if the purpose of a law was secular, promoted religion, and created excessive entanglement with religion. The judge said the law was secular on the surface. After all, the fact that secular judges could solemnize a wedding meant it wasn’t some pro-religious law.

There was the Endorsement Test, which just asked if the law endorsed religion. That didn’t apply, said the judge, because anyone looking at the law wouldn’t come away thinking it offered some special benefit to people of faith.

What about the “tradition” argument, that said something that might be illegal should get a free pass if it was really, really old? The judge considered the merits of CFI’s case against that one, but ultimately said this was the wrong test to challenge because it involved public prayers and these were private wedding ceremonies.

In short, the judge dismissed just about every argument the atheists were making by saying the law’s restrictions didn’t cross any legal line.

The fact that the Statute does not allow every secular individual trained to solemnize marriages to legally solemnize marriages in Texas does not make this statute unconstitutional. Instead, there is a rational basis for the Statute’s limitation based on both the historical practice of allowing judicial and religious officials to solemnize marriages, and because these individuals and their respective organizations can reasonably be expected to ensure the prerequisites to marriage are met and that the ceremony contains the necessary level of respect and solemnity without the need for significant involvement and oversight by the state.

So why is CFI now filing a virtually identical lawsuit with the same plaintiff?

There are some changes, the biggest of which is that the new lawsuit is being filed in the Fort Worth division of the Northern District of Texas rather than the Dallas division they filed in last time around.

Even in Texas, this ought to be a clear ruling in favor of the plaintiffs. The benefit is obvious, the harm is non-existent, and the legal precedent is fully on the side of the Secular Celebrants.

I should also point out that, while I find this lawsuit worthwhile, I still have many concerns about the Center for Inquiry as an organization due to its promotion of anti-trans bigotry (through its affiliation with Richard Dawkins and, more recently, its platforming of Jerry Coyne) and refusal to accept racial injustice.

***Update***: I’ve been told that celebrants certified through the similar Humanist Society are allowed to perform wedding ceremonies but that’s only because it has a religious 501(c)(3) designation. CFI apparently does not allow its celebrants to be certified as such with a religious organization.

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