Almost everyone agrees that if the Supreme Court concludes that states must recognize same-sex marriages, still no state may force a member of the clergy to perform a same-sex wedding if that is inconsistent with his/her religious beliefs. But what about the converse? States delegate to clergy the authority to create the civil marriage relationship at the same time he/she creates a religious marriage. Could a state refuse to allow clergy who will not perform same-sex ceremonies to create any civil marriage relationships? I.e. could the state say that a religious ceremony by a priest, or minister or rabbi who will not also conduct same-sex weddings will not be recognized for civil purposes (tax benefits, inheritance, etc.) More specifically, could the state say that such a member of the clergy does not have authority to sign the couple's marriage license? Or would such a rule violate the Establishment Clause by favoring some religions over others?
Howard Friedman
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