Attorney general dodges questions on whether public officials must marry all comers | Arkansas Blog

Wednesday, August 5, 2015

Attorney general dodges questions on whether public officials must marry all comers

Posted By on Wed, Aug 5, 2015 at 11:59 AM

Can a public official in Arkansas empowered by statute to perform marriages refuse on religious grounds to marry same-sex couples or must that official adopt an all-or-none approach to marriages?

That is the essence of a question that Sen. Bruce Maloch presented to Attorney General Leslie Rutledge. Her office's answer, in essence: Hard to say. It depends on how the federal courts rule on similar situations in applying federal Religious Freedom Restoration Act, which now has a state corollary.

Rutledge said it was clear that religious freedom protections applied to private party issues. And she said it was clear that say, a person who happened to be a JP but was also a member of the clergy and who claimed he or she was acting as a minister could invoke a religious reason to refuse to perform a same-sex marriage. But could a governor, county judge, JP, judge or other person empowered to marry cite a religious conviction to marry some (heterosexuals) but not others (same-sex couples)?

The analysis, said Rutledge,"would turn on how an Arkansas court would handle the key circuit splits among federal courts that have interpreted the same provisions in the federal RFRA." She noted it wasn't entirely clear how such a dispute might reach a court for adjudication.

Here's the full analysis.

My two cents: A government official can't use religion as a basis for deciding who gets a government-enabled  service. If a JP is going to get in the marrying business on the strength of civil office alone, the JP must marry all comers legally able to marry. Or no one. Those empowered to perform marriages by statute are not REQUIRED to perform marriages, remember. They may choose to marry no one.

The statute allow these people to marry:

(1) The Governor;
(2) Any former justice of the Supreme Court;
(3) Any judges of the courts of record within this state, including any former judge of a court of record who served at least four (4) years or more;
(4) Any justice of the peace, including any former justice of the peace who served at least two (2) terms since the passage of Arkansas Constitution, Amendment 55;
(5) Any regularly ordained minister or priest of any religious sect or denomination;
(6) The mayor of any city or town;
(7) Any official appointed for that purpose by the quorum court of the county where the marriage is to be solemnized; or
(8) Any elected district court judge and any former municipal or district court judge who served at least four (4) years.

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