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How can the government, through the court system, force religious organizations to officiate same-sex marriages and how does the First Amendment apply? The First Amendment to the Constitution of the United States of America reads “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Congress cannot pass a law that says that the official religion of the United States is “X” and Congress also cannot pass laws that tell religious institutions what they can and cannot do in practicing their religion (except for obvious things like murder). Each state has its own state constitution which outlines their own “Freedom of Worship”, like it is called in the Texas constitution.  So, why can the government, through the court system, force a church to officiate a marriage of a couple that defies the church’s religious beliefs?

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;

It’s a matter of delegation of authority. In France, every couple who wishes to be married has to participate in a civil marriage and then, if they wish, a religious marriage. French religious institutions are not required to perform same-sex religious ceremonies. On their wedding day, the couple and wedding party all go to the Mairie, the mayor of the town, where the Mairie performs a civil marriage ceremony. Then, if they choose, everyone hikes down to the church where the priest performs a religious marriage ceremony. And then, they party until dawn (true story). In Texas, as I assume the rest of the states, the religious leader takes on the role of civil and religious officiant.

In Texas, a heterosexual couple gets their marriage license at a local county clerk’s office, waits 72 hours and then gets officially married (within 90 days). There are only certain people who can legally officiate a marriage in Texas: a licensed or ordained Christian minister or priest; a Jewish rabbi; a person who is an officer of a religious organization and who is authorized by the organization to conduct a marriage ceremony; justices of the peace and judges, sitting and retired.The state delegates its official powers to religious leaders to act as both the state representative and the priest, rabbi, pastor, imam, etc.

So, if a state legalizes same-sex marriage, the legally authorized officiants are expected to act as the state officials and this creates a legal conundrum.

On the one hand, the state, through the law, is acting in accordance to the wishes of the voters. On the other, however, in expecting religious officiants to perform same-sex marriages, the state directly confronts the part of the first amendment which reads “make no law respecting an establishment of religion, or prohibiting the free exercise thereof;” because there are many religious institutions that believe that homosexual unions are offensive to and against the will of the God they worship.

So, where do we, as a nation, go from here, as some states legalize same-sex marriage? The Tenth Amendment of the Constitution reads “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” In other words, if a power is not given or expressly forbidden by the Constitution, like the enumerated powers, the states are the highest authority. In this case, it’s the authority for defining a legal marriage – including who performs the ceremony.

Religious beliefs are sacred to their beholders and should be weighed carefully, as the Founding Fathers recognized when they drafted the first amendment of the Constitution. Are Americans comfortable with forcing religious institutions to perform ceremonies that go directly against their beliefs? Should we move the way of France, separating the marriage ceremony into civil and religious ceremonies or is there an alternative way, where religious officiants are allowed to opt out of performing same-sex marriages based on their religious beliefs?  It’s up to every American citizen of voting age to weigh his/her conscience, take their stand and work through our political system to ensure the best outcome for us all.