By J. DeVoy
District of Nevada Judge Philip Pro declined to dismiss Clark County from a lawsuit brought by the ACLU to challenge Nevada’s “religious test” for whom may solemnize a marriage as implemented by the County. Clark County handles marriage matters in the Las Vegas metro area, ranging from issuing marriage certificates to authorizing officials to perform religious ceremonies.
Under Nevada law, a marriage may be officiated only by those affiliated with established religious organizations and government officials including judges and civil marriage commissioners (including, true to Las Vegas form, those dressed as Elvis). The ACLU’s lawsuit, filed in March 2011, seeks to challenge this practice in the wake of an atheist and members of the American Humanist Association whom Clark County has denied certification to solemnize marriage.
Allowing the suit to go forward, the central issue is now whether Clark County’s broad discretion essentially allows its employees to determine whether a religious organization is a bona fide religious institution. This raises the question as to whether Clark County employees are assessing the validity of various religions when their practitioners seek authority to solemnize marriages from the County. Such a practice is not merely unlawful, but unconstitutional – if successful, the ACLU’s suit will force Clark County to change its practices, and effectively change Nevada law, so that a larger class of people are entitled to solemnize marriage.
From Judge Pro’s order:
“Were the county clerk deemed to have unfettered discretion to decide if a particular religious organization is a bona fide religion, that would likely constitute a significant entanglement,”
“The Nevada statute appears to give unfettered discretion to the county clerk to decide whether a particular organization qualifies as a religious organization to trigger eligibility for the applicant seeking a certificate,”
While this seems like an esoteric issue, it is a question that has been confronted in Mississippi, and even created significant questions in New York for a couple I personally knew who wished to marry there. Given Nevada’s position against gay marriage, it is unsurprising for the question of who may solemnize marriages to be unresolved even at this late date. With the ACLU’s suit surviving a motion to dismiss, more activity likely will be forthcoming.
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The Legal Satyricon 
When I lived in New York City, I remember going to an obscure little office in the Municipal Building where two ladies had the task of deciding whether a religious denomination was recognized by the city as being authorized to perform marriages. I wanted to be married by a friend who was a minister in the Universal Life Church. “No, we don’t recognize that church,” the ladies told me, smiling meaninglessly. So, I had to get married in New Jersey. I was, of course, appalled by this intersection of church and state, and have since come around to the position of a certain republical presidential candidate that the answer to all disputes over the institution of marriage is to eliminate all references to it, definitions of it, and statutes pertaining to it from all state, federal, and city codes. In fact so far as I have been able to determine, government only started legislating marriage around the time of the French Revolution, and even organized Christian religions encountered resistance to establishing control over its terms and conditions in Europe during the first 1000 years AD.
The French revolution? The English puritan colonies in New England were regulating marriage by statute a century before that. The Puritans disfavored church weddings, favoring weddings licensed and officiated by public officials.
Also, it’s worth remembering that the Anglican Church was in practice a branch of the English government after HenryVIII’s break with Rome-marriages in England were regulated by the established church and its officials, who were after all, appointed by the Crown.