This weekend, the AJC reported that Speaker Ralston is backing legislation to be sponsored by Rep. Kevin Tanner concerning marriage solemnization refusals by clergy. The legislation is a response to the Supreme Court’s recent ruling that brought same-sex marriage to Georgia. In short, the bill is aimed at prohibiting any attempt to force clergy to marry same-sex couples.
The legislation is not legally necessary. The Supreme Court’s recent decision does not undermine the First Amendment right of clergy to not perform marriages inconsistent with their faith. Consider the example of a rabbi who will not marry interfaith couples. That rabbi has always had the protection of the First Amendment to refuse marrying interfaith couples notwithstanding those couples’ constitutional right to marry civilly. The same principle applies in the context of same-sex marriage. Same-sex couples in Georgia have a constitutional right to a state marriage license, but just like the interfaith couple, have no constitutional right to a religious solemnization ceremony. The law is the same today as it was prior to Obergefell.
That being said, there is nothing new or usual about codifying in statute what is widely known to be constitutionally protected. Each time state legislatures voluntarily enacted same-sex marriage, those marriage equality statutes included a reaffirmation of clergy rights. Here are a few examples:
New York (2011):
“A refusal by a clergyman or minister… to solemnize any marriage…shall not create a civil claim or cause of action.”
“… an official of an order or body authorized by the rules and customs of that order or body to perform a marriage ceremony may not be required to solemnize or officiate any particular marriage or religious rite of any marriage in violation of the right to free exercise of religion guaranteed by the First Amendment to the United States Constitution and by the Maryland Constitution and Maryland Declaration of Rights.”
“Nothing in this Act shall be construed to require any religious denomination or Indian Nation or Tribe or Native Group, or any minister, clergy, or officiant acting as a representative of a religious denomination or Indian Nation or Tribe or Native Group, to solemnize any marriage.”
This is unlikely the only piece of legislation to be introduced in the General Assembly as a response to the Supreme Court’s constitutionalization of same-sex marriage. However, this is likely the least controversial of what is to come.