The Establishment Clause of the First Amendment to the United States Constitution provides a safeguard for religious liberty ensuring that civil governments do not entangle themselves in religious doctrine, belief, and teaching.
In Christian doctrine, marriage is a sacred relationship which Scripture uses to picture the unity within diversity of the Triune God and to describe Christ’s relationship to the Church. Marriage is, therefore, a focal point of Christian doctrine, belief, and practice. The Establishment Clause precludes any excessive entanglement between church and state in order to prevent political corruption of religious teaching.
The continued conscription of ministers into the execution of the state’s policy of recognizing as valid only marriages that comport with the unilateral reinterpretation of marriage under state law made by former Governor Bill Haslam has significant ramifications.
Few realize that Tennessee’s marriage licensing statutes were passed and signed into law for the purpose of establishing as valid only those marriages they knew conformed to certain Christian beliefs acceptable within the state, and, as will be demonstrated, the entanglement between the state and the church in regard to marriage continues to this day.
According to the Tennessee Supreme Court, the marriage statutes of Tennessee carried forward the stated purpose of the marriage statutes of North Carolina, which were adopted by Tennessee’s first General Assembly. That purpose, according to the statutes and the Tennessee Supreme Court was “[f]or preventing clandestine and unlawful marriages.” Bashaw v. State, 9 Tenn. 177 (1829); Smith v. Bank, 115 Tenn. 12 (1905).
What were “clandestine and unlawful marriages?” As the next two paragraphs will demonstrate, these statutes were intended to discriminate between religious doctrines in order to prevent certain ministers from officiating marriages. In other words, the entire marriage licensing scheme Tennessee adopted was originally intended to establish an official State religious test for the validity of marriage and thereby discriminate against certain ministers!
According to the Tennessee Supreme Court, under the marriage statutes, only a “clergyman of the church of England, and for want of such, any lawful magistrate” could solemnize a marriage, but it could only be done upon the issuance of a license or conformity to the process “prescribed by the book of common prayer.” In other words, only if there was no church of England clergyman within the local parish could a magistrate solemnize a marriage! No other clergyman could solemnize a marriage.
Restricting the rite of marriage to clergy from the Church of England created problems because “Presbyterian or dissenting clergy, conceiving themselves not included in the restriction of ministers mentioned in that act, have joined persons together in holy matrimony.” Bashaw, 9 Tenn. at 182. So, the law was amended, but only to allow Presbyterian ministers to join Anglican priests in solemnizing marriages upon certain conditions.
As denominational diversity within Christianity continued to expand, the law was again amended to include “all regular ministers of the gospel of every denomination, having the care of souls, and all justices of the peace, to solemnize the rites of matrimony according to the rites and ceremonies of their respective churches.” Bashaw, 9 Tenn. at 182-83. But, even as amended, the connection between the marriage statutes and the establishment of preference for a certain religious belief supporting marriage remained clear.
Consequently, the Bashaw Court said one of the requisites for a valid marriage in Tennessee was “[t]he solemnization of the marriage performed by a person duly qualified, that is, by a regular minister of the gospel having the care of souls, or a justice of the peace duly qualified.”
Thus, Tennessee, throughout the State’s history, chose to use its regulation of marriage as a means to entangle itself in religious matters and to establish the State’s preference for certain religious doctrines over others for the purpose of carrying out its marriage policy. The entanglement between church and state is highlighted by the state’s marriage statutes defining “regular ministers, preachers, pastors, . . . and other spiritual leaders of every religious belief” as those “having the care of souls” and they must have been “ordained or otherwise designated in conformity with the customs of a church, temple or other religious group or organization” whose “customs must provide for such ordination or designation by a considered, deliberate, and responsible act.”
So long as the State’s definition of marriage is consistent with the doctrine and teachings of these religious communities then there is, perhaps, little perceived harm in conscripting the services of a minister, preacher, or pastor as a state-ordained official to carry out the state’s marriage policy. But when, as now, state officials redefine marriage in a way that is contrary to and inimical to Christian doctrine, it becomes impossible for ministers of the gospel of Christ to participate as state-ordained officials without violating their religious doctrine, belief, and teachings.
In sum, when we look to the origins of Tennessee’s statutes on marriage, they did not have “a secular purpose” from the beginning, and they have fostered and continue to foster “an excessive government entanglement with religion,” both of which factor into the whether there is an established of religion under the First Amendment. See American Legion v. American Humanist Association, 588 U.S. ___, No. 17-1717 (2019) quoting Lemon v. Kurtz- man, 403 U. S. 602 (1971).
The plaintiff ministers believe this entanglement, which existed from the origins of Tennessee’s marriage statutes, will have a very deleterious effect Christian doctrine, belief, and teaching regarding marriage and its relationship to the gospel. For example, in the recent American Legion decision, the Court said that the Maryland-National Capital Park and Planning Commission’s continued maintenance of the Bladensburg Cross was not unconstitutional, but the reasoning is what here concerns the ministers:
The cross came into widespread use as a symbol of Christianity by the fourth century, and it retains that meaning today. But, there are many contexts in which the symbol has also taken on a secular meaning. Indeed, there are instances in which its message is now almost entirely secular . . . . The familiar symbol of the Red Cross—a red cross on a white background—shows how the meaning of a symbol that was originally religious can be transformed. . . . So an image that began as an expression of faith was transformed.
So, as with the transformation of the message conveyed by the Bladensburg Cross when the message being conveyed to the people by a civil law says biological sex is irrelevant to marriage and that marriage is something other than the union of one man and one woman, marriage will lose the last vestiges of its sacred and transcendent nature and importance. In fact, this was exactly the reasoning already employed by five justices on the United Supreme Court in Obergefell v. Hodges:
Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here. But when that . . . becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied.
These five justices have effectively said that marriage has been transformed in their minds in the same way the Bladensburg cross was described as being transformed.
In other words, these Christian minsters are concerned that the state’s continued use of Christian ministers to officiate and ordain marriages, as redefined, will dilute and distort Christian teaching regarding marriage. Marriage will increasingly be seen as a purely secular institution that can mean whatever a majority of the legislature says it means for the purpose of distributing a certain set of government benefits. The situation in Obergefell is now being reversed; the “necessary consequence” of conscripting ministers to carry out “enacted law and policy” is “to put the imprimatur of [Christianity] itself on” a definition of marriage that is contrary to Christian doctrine.
When ministers are required to carry out for the state a law that denies what God says is true about the complementarity of men and women and about its relationship to marriage, the ministers believe they and the church at large are effectively conveying their agreement with the civil law’s message about God, men and women, and marriage. They and the church are putting their imprimatur on that message, and, from an Establishment Clause perspective, the government is seeking to put the imprimatur of these ministers and the church on the state’s message, as the state has done since the licensing statutes were first enacted.