Judge dismisses lawsuit over Texas law banning Secular Celebrants from solemnizing marriages

The Center for Inquiry tried to overturn an unjust Texas law, but once again, a judge wasn't having it

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A federal judge has ruled that Secular Celebrants, trained and authorized by the Center for Inquiry, don’t have legal standing to overturn a Texas law banning them from performing marriage ceremonies. The lawsuit was filed back in November.

(Image via Adobe Spark)

The goal of CFI’s lawsuit was 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 in Texas 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.

Interestingly enough, celebrants certified through the similar Humanist Society are allowed to perform wedding ceremonies in Texas, but only because that group has a religious 501(c)(3) designation. CFI says it’s not a religious organization, which is why the law doesn’t cover them, and that’s what they wanted to change.

I happen to agree with their position: There’s no good reason to deny Secular Celebrants the same opportunity to perform wedding ceremonies especially when, through CFI, they can only obtain that title after going through a training.

The lawsuit was filed 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 explained. If he did, he could be charged with a crime.

The defendants included Tarrant County Clerk Mary Louise Nicholson and Tarrant County District Attorney Phil Sorrells. Nicholson, CFI said, “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 made clear that its members wanted people like McCutchan to perform their ceremonies because the supposedly secular alternatives were 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 was 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 wasn’t CFI’s first attempt to get this law changed. Nor was 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 had 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 use because it involved public prayers and these were private wedding ceremonies.

In short, the judge dismissed just about every argument the atheists made 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 was CFI now filing a virtually identical lawsuit with the same plaintiff? Given that this one was being filed in the Fort Worth division of the Northern District of Texas rather than the Dallas division they filed in last time around, perhaps they thought a different judge would lead to a different result.

Even in Texas, I felt, this should have been a clear ruling in favor of the plaintiffs. The benefit is obvious, the harm is non-existent, and the legal precedent was fully on the side of the Secular Celebrants.

But the judge this time around, U.S. District Court Judge Reed O’Connor (also a George W. Bush appointee), dismissed the case altogether.

One of the issues was whether CFI is a religious organization. The Texas attorney general (who intervened in this case) argued that CFI’s celebrants were already allowed to conduct wedding ceremonies because CFI is religious. CFI said it was not.

O’Connor eventually sided with CFI on that one: “CFI is neither a religious organization nor a religion.”

At oral argument, the Attorney General discarded the history and tradition of the Texas law, stating that Satanism and Atheism were “religion[s]” and “religious organization[s]” under the Texas Family Code…

Interpreting the terms “religion” and “religious organization” to cover Satanism and Atheism not only ignores history and tradition but distorts their plain meaning and risks setting a dangerous precedent.

But ultimately, the case isn’t moving forward because the judge says McCutchan hasn’t “conducted an unauthorized marriage ceremony” and there’s no “real, credible threat of prosecution.”

Here, the facts alleged support neither a credible nor a substantial threat of prosecution. The only fact in Plaintiffs’ Complaint about Defendant Sorrells is that he “may bring criminal charges” against an unauthorized celebrant who solemnizes a wedding. This injury is wholly speculative.

… Unlike other cases involving pre-enforcement challenges, Individual Plaintiff provides no examples of past enforcement, no public statements regarding enforcement of the statute, and no facts about how the District Attorney could know a secular celebrant violated the law.

There are some laws so egregiously unconstitutional on the surface that you don’t have to wait to get arrested before filing a lawsuit. But this law, the judge says, doesn’t rise to that level. Unless McCutchan—or someone else—is actually prosecuted for solemnizing a wedding as a Secular Celebrant, and there’s no reason to think he will, there’s nothing to see here.

I find that logic hard to believe. Just because a Secular Celebrant hasn’t been prosecuted in the past doesn’t mean the law is meaningless. All it would take is an overzealous conservative District Attorney who wants to apply the law as written—despite the low stakes—for the obvious problems to appear. Just because a DA might not take a close look at who a wedding officiant is doesn’t mean that person should have the power to prosecute someone who performs the ceremony without proper authorization.

The case was dismissed without prejudice, meaning it could be filed again in the future if anyone gets prosecuted. But for now, there’s no movement. As of this writing, CFI hasn’t issued any statement about the decision.

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.

(via Religion Clause. Portions of this article were published earlier)

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