A small but interesting family law issue keeps popping up: Can ministers who are ordained online legally preside over marriages? Tennessee just passed a law to prohibit solemnization by such ministers, but a court has temporarily blocked the law from taking effect. The validity of the law will be hashed out at a trial at some point in the future. But why did the Tennessee legislature pass this law? And why is the law being challenged? This seemingly technical question about marriage officiants reflects a larger cultural battle, as younger generations seek to untether weddings from their formal, ritualistic, religious origins.
The Internet and the Ministry
Many of the legal issues involving marriage officiants involve ministers of the Universal Life Church, an organization that is called a church but functions very differently from most organized religions. The ULC is a non-denominational church that was founded in Modesto, California, in 1962 and claims to have ordained more than 20 million ministers. The ULC joins together ministers who “come from all walks of life and spiritual traditions”; their “common thread” is “adherence to the universal doctrine of religious freedom: Do only that which is right.” There is no set doctrine for ministers to accept, nor is there a mandate that ministers must believe in God. The ULC advocates “religious freedom,” and the pursuit of “spiritual beliefs without interference from any outside agency, including government or church authority.” Ordination is free and is accomplished in seconds through a click on the website. The click is followed by online approval and the offer to buy everything from laminated credentials to a special clergy-parking placard.
Although ULC is the largest church that ordains ministers online, it is not the only one. Anyone can be ordained as quickly and easily by the Church of the Flying Spaghetti Monster, Rose Ministries, American Marriage Ministries, the American Fellowship Church, Wanderlust Bay Ministries, First Nation Church, or even The Church of Dude, to name some of the most popular ones. As discussed below, the legal issues are more or less the same regardless of the particular entity. Can you officiate at weddings if you become ordained after just a click or two online?
Marriage Law and the Role of Officiants
Marriage is regulated at the state level. States determine who can marry (subject to compliance with federal constitutional rights, like the right to marry someone of a different race or the right to marry a person of the same sex). They also determine the formalities necessary for a valid, civil marriage. Although there is some variation from state to state, marriage formalities tend to involve the same basic elements: proof of eligibility, license, solemnization. That means that couples first appear in person at the clerk’s office to apply for a marriage license. They will be asked to present proof of identity and age and to swear that they are eligible to marry in general (old enough, mentally competent, etc.) and eligible to marry each other (not too closely related, e.g.). After a short waiting period, usually 24-72 hours, a marriage license will issue. This license gives the couple permission to proceed with a wedding, at which the other key component of the formalities will take place. An officiant with the authority to solemnize marriages in the state presides over the wedding ceremony (any kind will do). The officiant’s purpose is to elicit the consent to marry from both parties (“I do”) and to declare them married in the eyes of the state. The officiant then obtains signatures from the parties and the witnesses, certifies that the ceremony satisfied the state’s legal requirements, and sends the paperwork back to the clerk’s office that issued the license in the first place. The couple later receives a “marriage certificate” in the mail, which they can hunt fruitlessly for decades later when some insurance bureaucrat insists they must produce evidence of the marriage.
What is the officiant’s purpose in this parade of formalities? The state delegates authority to an officiant to make sure the legal requirements are met—that both parties are there voluntarily, that they both give consent to be married, and that the paperwork is completed so the state has a record of the change in their legal status. Ideally, that person would have some knowledge of those requirements, an appreciation for the need to follow the rules, and the morals or ethics sufficient to preside well over a ceremony that has legal consequences. With power also comes responsibility; some states impose fines or misdemeanors on individuals who solemnize weddings that do not accord with the law.
As may be obvious from the description above, one need not be a rocket scientist to properly solemnize a wedding, but states have always treated the power to officiate as a grant of trust and circumscribed the universe of individuals who merit it. A typical state marriage code will provide a list of secular and a list of religious officials with authority to preside over a wedding. Marriage is a civil status, with legal consequences imposed by the state that are separate and apart from any rules or norms that any religious institution may superimpose. So why grant the power to officiate over a civil wedding to religious officials? This tradition is a byproduct of the complicated history of marriage in the United States, in which the civil and religious components of marriage have been intermingled. Many people who choose to marry plan to enter the civil and religious state of marriage simultaneously—and would seriously object to a requirement that the two statuses be created separately. For better or worse, the state defers to these wishes, by allowing a religious ceremony to fulfill the secular, civil legal requirements.
In addition to the two typical categories of officiants, a small number of states provide an option that permits almost any person to officiate at a wedding. In Massachusetts, for example, the law permits any person who is not otherwise authorized to perform weddings to apply for permission from the governor to receive a one-day designation certificate, which allows that person to officiate at a specific marriage ceremony. For $20, any friend or family member can become an authorized officiant. California law permits the Commissioner of Civil Marriages to deputize other people to perform marriages—several counties use that provision to allow any adult to be deputized for a single wedding (for a fee).
Are there limits to how tightly the state can control the pool of officiants? That’s the question raised by the lawsuit challenging the new Tennessee law.
Tennessee Marriage Law
Tennessee law gives a long list of officiant choices. As the code provides in § 36-3-301(a)(1),
All regular ministers, preachers, pastors, priests, rabbis and other spiritual leaders of every religious belief, more than eighteen (18) years of age, having the care of souls, and all members of the county legislative bodies, county mayors, judges, chancellors, former chancellors and former judges of this state, former county executives or county mayors of this state, former members of quarterly county courts or county commissions, the governor, the speaker of the senate and former speakers of the senate, the speaker of the house of representatives and former speakers of the house of representatives, members of the general assembly…, law enforcement chaplains…, members of the legislative body of any municipality in the state, the county clerk of each county, former county clerks…, and the mayor of any municipality in the state may solemnize the rite of matrimony.
The next section (§36-3-301(2)) provides an additional limitation: “In order to qualify among the religious officials, an individual “must be ordained or otherwise designated in conformity with the customs of a church, temple, or other religious group or organization; and such customs must provide for such ordination or designation by a considered, deliberate, and responsible act.” There is a specific exception for Quakers, who believe that every member of the congregation is a ‘minister” and responsible for the care and worship of the community. Quaker weddings consist of the couple’s making promises to one another and signing a certificate that is witnessed and signed by everyone present.
In 2019, the legislature passed a bill adding an additional limitation. The last sentence of subsection (2) now says: Persons receiving online ordination may not solemnize the rite of matrimony.
Before the 2019 amendment, the Tennessee Attorney General was twice asked for an advisory opinion as to whether a minister ordained online by the Universal Life Church could solemnize marriages in the state. The answer was no. In Tenn. Op. Atty Gen. No. 15-14 (Feb. 6, 2015), the attorney general wrote that a ULC minister cannot validly preside over a wedding in Tennessee because they are not “ordained by a considered, deliberate, and responsible act,” as required by the statute (excerpted above). In the Attorney General’s view, the fact that ULC offers “instant ordination” to anyone who completes the form—without requiring individuals to “earn” minister credentials—is incompatible with the state’s definition of ordination. The process does not ensure that the person ordained is a “spiritual leader.”
The 2019 amendment thus made express what the attorney general, at least, thought was implicit in the statute already. After the amendment was signed into law, the attorney general was again asked about the status of officiants ordained online. In that opinion, Op. Atty. Gen. No. 19-08 (2019), the attorney general opined that before the amendment, a minister who was ordained online could preside over weddings as long as he or she also satisfied the requirements set forth in the statute—a “spiritual leader” who was ordained pursuant to a “considered, deliberate, and responsible act.” It characterized the prior advisory opinion as applying to any ordination that required no more than “a click of the mouse.” With the amendment, then, the ban is broader—regardless of the nature and deliberation involved in the ordination process, if it is conducted online, the resulting “minister” cannot “solemnize the rite of matrimony.”
The Challenge to the New Law: Can Tennessee Ban Online-Ordained Marriage Officiants?
Many states have had litigation over the legal validity of marriages officiated by ministers ordained online. In several cases, spouses have argued that their marriages were invalid because the wedding was solemnized by a ULC minister (or other minister ordained online). The legal validity (or lack thereof) of marriages officiated by ULC ministers, or other similar churches, varies by jurisdiction. In Mississippi, for example, the state’s highest court ruled in Matter of Last Will and Testament of Blackwell that ULC marriages are valid because the church is “enough of a religious body,” and one of its ministers is “enough of a spiritual leader.” The Virginia Supreme Court, however, held in Cramer v. Commonwealth that the authority of a group of ULC ministers was rightfully rescinded because they did not meet the state law definition of clergy.
In New York, several court rulings have denied the authority of online-ordained ministers to officiate at weddings. In Ravenal v. Ravenal, the court annulled a marriage on grounds that the ULC minister who presided over their wedding did not have the authority to solemnize marriages under New York law, which requires clergy to be ordained by a “church” and to have a congregation. In Rubino v. City of New York, the court rejected a challenge by a group of ULC-ordained ministers, who had argued that the state’s refusal to recognize their authority violated the Free Exercise Clause of the First Amendment. Finally, in Ranieri v. Ranieri, the court held that a marriage solemnized by a ULC minister was void.
In some other states, courts have specifically ruled that online-ordained ministers are qualified to officiate weddings under the relevant state statute. But in most, there is no court ruling on point. There is thus often a degree of limbo surrounding a couple’s decision to be married by a minister who was ordained online. (I recommend that couples always marry first at a government office unless they are in a state in which the authority of online-ordained ministers is clearly established.)
In Tennessee, just before the ban on online-ordained officiants was scheduled to take effect, a lawsuit was filed by the Universal Life Church and three of its ordained ministers. The lawsuit claims that that law burdens the free exercise of religion and freedom of expression by its members. In a hearing that resulted in the issuance of an order preventing the law from taking effect, the federal judge, Waverly Crenshaw, questioned whether the law was supported by a “rational basis”—how does the ban on these ministers ensure the institution of marriage?
This lawsuit is similar to the one brought by ULC ministers in New York several decades ago in Rubino. It might meet with the same fate, but social norms surrounding marriage have certainly changed. Same-sex couples now can marry in all fifty states, and they are more likely to choose a wedding ceremony outside of an established religious organization (some of which won’t permit them to marry) and also more likely to avoid a government official as an officiant for fear of encountering someone who does not approve. But different-sex couples are also more likely to choose a private wedding ceremony today than they were in past generations. Fewer people identify with organized religion, and attitudes toward marriage are even more individualistic than a decade or two ago. (These attitudes and more are explored in this New York Times article.) One need only read wedding announcements in the newspaper to realize how common it is for couples to choose a friend or family member as an officiant, usually by way of an online-ordination for that person.
Can Tennessee choose to ban these officiants despite the rise in social demand for their services? That is the question that will be answered when the lawsuit goes to trial this fall. Defenders of the new law have suggested that there is no way for a “one-click” ordination process to determine whether the individual has the “care of souls,” as the statute requires. But is that something the state can constitutionally decide anyway? One problem with the marriage officiant laws on the books across the country is that they attempt to define words like “religion” and “clergy,” which are not very susceptible to objective determination by a civil court. But perhaps the judge’s questions at the initial hearing about whether the law has a “rational basis” suggest a less fraught way to invalidate the statute. If the state cannot articulate even a “rational basis” for the law—an explanation of how this ban is rationally related to its legitimate regulation of entry into marriage—the law can be struck down regardless of whether it burdens the free exercise of religion. Through the state’s case at trial, we may be able to learn more about what exactly the state thinks it takes to extract a voluntary “I do” from each party and process the paperwork.