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.