Last year, Rep. Steve Montenegro (R-Litchfield Park) sponsored a bill, HB 2481 (.pdf), regarding the solemnization of marriages.
It was a pre-emptive strike on the courts overturning Arizona’s constitutional provision banning same-sex marriages and permitting same sex-marriage, which occurred in October of last year.
Montenegro’s bill never even made it to a Committee of the Whole (COW) vote. I explained at the time that his bill defined “minister” to mean an individual who is authorized to solemnize a marriage pursuant to A.R.S. Section 25-124, which includes:
A. The following are authorized to solemnize marriages between persons who are authorized to marry:
1. Duly licensed or ordained clergymen.
2. Judges of courts of record.
3. Municipal court judges.
4. Justices of the peace.
5. Justices of the United States supreme court.
6. Judges of courts of appeals, district courts and courts that are created by an act of Congress if the judges are entitled to hold office during good behavior.
7. Bankruptcy court and tax court judges.
8. United States magistrate judges.
9. Judges of the Arizona court of military appeals.
B. For the purposes of this section, “licensed or ordained clergymen” includes ministers, elders or other persons who by the customs, rules and regulations of a religious society or sect are authorized or permitted to solemnize marriages or to officiate at marriage ceremonies.
This bill goes well beyond providing that clerical ministers of religious organizations do not have to solemnize marriages “inconsistent with the sincerely held religious belief, doctrine, or tenet of the church.” This bill invites mischief from the judiciary — most state court justices and judges are elected — by allowing a judicial officer to refuse to solemnize a same-sex marriage in a civil ceremony. I have no doubt that there are elected judicial officers who would abuse this law to make a political statement.
In March of this year, a state judiciary ethics advisory committee came to the same conclusion and issued an ethics opinion advising Arizona judges who perform wedding ceremonies that they cannot turn away gay couples who want to marry. Rejecting same-sex couples would violate a judicial-conduct rule against bias or prejudice based on sexual orientation. Ethics panel: Arizona judges can’t refuse gay weddings:
The advisory opinion also said a judge’s religious or other personal beliefs don’t make a difference, nor does it matter if the judge performs weddings at non-court locations.
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Arizona’s guidance marked the first time a state has issued a public, formal opinion on same-sex weddings to judges, said Cynthia Gray, director of a judicial ethics unit of the National Center for State Courts.
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Cathi Herrod, president of the Center for Arizona Policy, said the opinion tramples on judges’ religious rights and was approved without public comment.
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State Sen. Steve Yarbrough, R-Chandler, said he has serious issues with the opinion. He sponsored last year’s religious-rights proposal, Senate Bill 1062.
He said with only weeks left in the Legislature’s annual session, it’s unlikely a religious rights bill could be successfully shepherded through this year to address the issue.
Past is prelude. This “culture warrior” bill to allow judges and public officials to refuse to perform same-sex marriages based upon their “sincerely held religious beliefs” is certain to make a reappearance after the U.S. Supreme Court rules on same-sex marriages in coming days.
The state of North Carolina just pre-emptively passed a law along the lines of Rep. Montenegro’s bill this week, overriding the veto of Republican Governor Pat McCrory, to allow state officials to discriminate against same-sex couples wrapped in the cloak of “religious freedom.” North Carolina Allows Officials to Refuse to Perform Gay Marriages:
Defying the governor, lawmakers on Thursday enacted a law that allows state court officials to refuse to perform a marriage if they have a “sincerely held religious objection,” a measure aimed at curtailing same-sex unions.
The Republican-controlled House voted 69-41 on Thursday to override a veto by Gov. Pat McCrory, also a Republican, who refused to sign the marriage bill in May. Mr. McCrory said at the time that although he believed that marriage should be between a man and a woman, he vetoed the bill because “no public official who voluntarily swears to support and defend the Constitution and to discharge all duties of their office should be exempt from upholding that oath.”
The State Senate, which is also controlled by Republicans, overrode Mr. McCrory’s veto June 1.
The law, which takes effect immediately, allows magistrates, along with assistant and deputy registers of deeds, to refuse to perform a marriage without facing punishment or charges of willfully failing to discharge their duties. Court officials who disclose a religious objection must stop performing all marriages for at least six months.
The governor condemned the move. “It’s a disappointing day for the rule of law and the process of passing legislation in North Carolina,” Mr. McCrory said in a statement.
Steve Benen caught the obvious flaw in all of these “religious freedom” bills that are based upon one’s “sincerely held religious beliefs” — it cannot be limited to same-sex marriages. New N.C. ‘religious freedom’ law reaches new depths :
The goal, not surprisingly, is to stand in the way of same-sex couples who want to wed, but the measure doesn’t specify that, which raises the prospect of some pretty broad problems. If a county magistrate has a religious objection to an interracial couple getting married, he or she can refuse.
The same is true if the local official objects to a couple from different religious backgrounds. If the local official objects to marrying someone who’s been previously divorced, the same thing.
This is a point that I made repeatedly with respect to the Center for Arizona Policy bill by Sen. Yarbrough, SB 1062, that led to a firestorm of protest in Arizona. Courts do not generally question an individual’s “sincerely held religious beliefs” because of the First Amendment religious liberty clauses. This would effectively grant an individual a “license to discriminate” against whomever they dislike, whether it be by race, ethnic origin, nationality, religion, sex, or sexual preference, wrapped in the cloak of “religious freedom.” It would effectively undermine the protections afforded under the Civil Rights Act of 1964 in employment and public accommodations.
The culture warriors on the right never accept defeat. They always keep coming back trying to deny others equal protection under the U.S. Constitution. You can bet that a version of this judiciary bill and a new version of SB 1062 are coming from the Center for Arizona Policy in the not too distant future. Prepare to do battle.