Getting married is undoubtedly the best thing I have ever done with my life.  (No, I’m not just saying that because my wife might read this — she doesn’t read what I write on this site.)  The joy, comfort, security, structure, purpose, fulfillment, and so many other blessings that marriage has brought to my life are without equal.  As former U.S. Supreme Court Associate Justice Anthony Kennedy wrote in his majority opinion in Obergefell v. Hodges,

The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. . . . [I]t supports a two-person union unlike any other in its importance to the committed individuals. . . . Marriage responds to the universal fear that a lonely person might call out only to find no one there.  It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other.

576 U.S. 644, 666-67 (2015).  Justice Kennedy also noted that the Supreme Court’s precedents

and the Nation’s traditions make clear that marriage is a keystone of our social order. . . . Marriage remains a building block of our national community.

For that reason, just as a couple vows to support each other, so does society pledge to support the couple, offering symbolic recognition and material benefits to protect and nourish the union. . . . States . . . have throughout our history made marriage the basis for an expanding list of governmental rights, benefits, and responsibilities. . . . includ[ing]:  taxation; inheritance and property rights; rules of intestate succession [i.e., what happens to property when its owner dies without a will]; spousal privilege in the law of evidence; hospital access; medical decisionmaking authority; adoption rights; the rights and benefits of survivors; birth and death certificates; professional ethics rules; campaign finance restrictions; workers’ compensation benefits; health insurance; and child custody, support, and visitation rules.  Valid marriage under state law is also a significant status for over a thousand provisions of federal law.  The States have contributed to the fundamental character of the marriage right by placing that institution at the center of so many facets of the legal and social order.

Id. at 669-70 (citations omitted).

In short, a couple’s marriage comes with a long list of social, emotional, economic, and legal benefits that exist only because of the fact that they are married.  Aside from some familiarity with fundamentalist religious doctrines and the dark history of anti-miscegenation laws in the American south, I have never understood why anyone would not want to extend these benefits to as many people as humanly possible.  So, when I say that getting married is the best thing I have ever done with my life, you can rest assured that I mean it.

That’s why, when my best friend asked me in 2017 to perform his wedding ceremony at a resort on the Gulf Coast of Florida, I enthusiastically became a literal card-carrying ordained minister of the Universal Life Church.

I can hear some of you now:  *gasp* “What?! You’re ordained?!“

Slow down.

A brief history of the Universal Life Church.

For the uninitiated, the ULC is not a “church” in the sense that probably many of us think of that word.  It is a nondenominational organization that was founded in 1962 by a Baptist minister who had grown tired of the way that religion divided people, and who wanted to create a faith community that would bring together the best elements of various religious sects.  In practice, however, the ULC was more of a cultural sensation during the non-conformist counter-cultural era of American history.  It provided mail-order ordinations and $20 Doctor of Divinity degrees from its own “school” in California, and it grew in popularity due to the false rumor that ordination would exempt young men from being drafted into the Vietnam War.  Fast-forwarding to the internet age, the ULC now offers online ordination for free.  In 2015, Samuel Freedman of The New York Times bemoaned that the ULC “pumps out ordinations at an assembly-line pace, almost mocking a process that usually requires years of seminary study.”

In other words, to some, a ULC ordination is to faith what Thomas Kinkade was to art.

Florida, like Tennessee, has a law that requires that, for any marriage in the state to be valid, the wedding ceremony performed within the state must be “solemnized” by either an ordained minister or one of a statutorily defined list of current or former government officials.  In Florida, the ordained minister must be a “regularly ordained minister[] of the gospel or elder[] in communion with some church, or other ordained clergy,” and in Tennessee, a “regular minister[], preacher[], pastor[], priest[], rabbi[] [or] other spiritual leader[] of every religious belief . . . having the care of souls[.]”  Compare Fla. Stat. § 741.07(1), with Tenn. Code Ann. § 36-3-301(a)(1).

Finding no Florida judicial decision interpreting “regularly ordained minister[] of the gospel or elder[] in communion with some church, or other ordained clergy” as not including people ordained by the ULC, however, I became ordained by the ULC and, in the common room off the lobby of a beachside resort on Sanibel Island, Florida, I performed the one and only marriage ceremony that I have ever performed.

Tennessee singles out online-ordained ministers.

In Tennessee, the current law imposes the additional requirements and express prohibition that “any such minister, preacher, pastor, priest, rabbi or other spiritual leader 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.  Persons receiving online ordinations may not solemnize the rite of matrimony.”  Tenn. Code Ann. 36-3-301(a)(2) (emphasis added).  The express prohibition on “[p]ersons receiving online ordinations” from solemnizing marriage ceremonies materialized in 2019, following a 2015 advisory opinion from former Attorney General and Reporter Herbert Slatery, which drew attention to the fact that, “other than the click of a mouse,” online ordination entails no “considered, deliberate, and responsible act.”  That is, the attorney general took the position that the law as then-written already excluded ULC ministers from performing valid marriage rites.

Not willing to let sleeping dogs lie (and stay out of other people’s business), the prototypically socially conservative Tennessee General Assembly enacted an express prohibition on online-ordained ministers from solemnizing Tennessee marriages.  At the time, Lieutenant Governor Randy McNally (yes, Randy McNally of salacious Instagram infamy just this past spring) voted against the bill — but only because it added Tennessee legislators to the list of statutorily approved government officials who could solemnize a marriage and validate it in so doing.

“When it came up in the Senate, I did not vote for it because I felt like it should be a minister that officiates at a wedding, not just a public official,” he said.  “It should be a minister, and should be a minister that has credentials.”

No further explanation — it just should be, you see.

The ULC Monastery and three of its ministers fight back.

On June 21, 2019, ten days before the new express prohibition went into effect, ULC Monastery (the Seattle-based offshoot of the original California-based ULC) and five individuals — three of whom are ULC-ordained ministers — sued four Tennessee county clerks, four Tennessee district attorneys, Attorney General Slatery, and Governor Bill Lee, all in their official capacities, in federal court, asking the court to declare the express prohibition on online-ordained ministers from solemnizing Tennessee marriages unconstitutional under both the federal and Tennessee constitutions, and to enjoin enforcement of the law.  Their fear was that, because Tennessee law criminalizes “[k]nowingly making a false entry in . . . a government record,” see Tenn. Code Ann. § 39-16-504(a)(1), an online-ordained minister could be subjected to prosecution for a Class A misdemeanor, see Tenn. Code Ann. § 39-16-504(b), if, for example, after performing a marriage ceremony, he signed and returned a couple’s marriage license to a county clerk, knowing that his solemnization was invalid under the law.

Over the next several months, the parties locked horns in pretrial litigation.  The court dismissed Governor Lee from the case in December 2020, as well as the claims of two of the original five plaintiffs, concluding that, because they were married by ULC-ordained ministers before the Tennessee General Assembly’s new prohibition went into effect, they had no cognizable legal claims.  But the rest of the ULC Monastery’s and its ministers’ claims were allowed to go forward.

The remaining governmental defendants appealed the trial court’s denial of their motions to dismiss to the U.S. Court of Appeals for the Sixth Circuit, which, last year, very narrowly affirmed the trial court’s ruling, allowing a small subset of the original claims to proceed to trial.

That trial began just more than two weeks ago, on August 15.  During trial, the plaintiffs and remaining governmental defendants came to an agreement to resolve the case before the trial judge could rule on the merits of the claims.  The three remaining district-attorney defendants promised that they would not prosecute any online-ordained minister for performing a marriage ceremony and then solemnizing it by attesting on a state-issued marriage license and turning it into a county clerk, and the one remaining county-clerk defendant promised that neither he nor anyone in his office would tell any member of the public going forward that online-ordained marriages are not valid.

So, what’s there to celebrate?  We didn’t get a court opinion saying that the law is unconstitutional!

As I would tell any client involved in a dispute, the best outcome in any case is that the parties voluntarily resolve their differences before the government can impose its will.  So, the fact that this case settled at a bench trial is a good outcome.  Although the trial judge seemed concerned about the constitutional questions surrounding the challenged law early in the case, there was no telling exactly how he would answer those questions once he had heard all of the evidence and the arguments of counsel for the parties.

And this settlement is an indication that public-interest litigation is still alive and well.  Not only are the three DAs’ concessions substantive and meaningful in their respective counties, the stipulations they put into the record, although legalistically drafted, are all but concessions that they were on the losing side of the merits of the case.

But were the plaintiffs right?

The plaintiffs advanced many substantive federal and state constitutional claims in the litigation.  The most compelling, in my view, was their argument that the challenged law violates the Establishment Clause of the First Amendment to the U.S. Constitution (“Congress shall make no law respecting an establishment of religion”), which applies to the states through the Fourteenth Amendment’s Due Process Clause.  The U.S. Supreme Court’s Establishment Clause jurisprudence instructs that the First Amendment restricts states from taking actions that treat religions differently and actions that promote religion over secularism.  To survive a constitutional challenge under the applicable framework (called the “Lemon test,” although the justices of the current Court are divided on whether the Lemon test is still good law), the government sued would have to establish that its challenged action (a) has a non-frivolous secular purpose, (b) has a primary effect that neither advances nor inhibits religion, and (c) does not foster excessive entanglement with religion by, for example, requiring the government to follow up on and check to see whether a self-described religious organization is doing what we commonly think of as religious things.

Courts are deferential to state governments on (a), and, in my home state’s defense, there may be a non-frivolous purpose behind this challenged law.  The dissolution of a marriage can have devastating effects on spouses, their families, their friends, and their children.  Society itself can wind up bearing some of those costs, depending on the circumstances.  If just anyone can solemnize a marriage with just “the click of a mouse,” there is a potentially non-trivial argument that society will wind up with lots of shaky marriages, prone to early termination.

The application of (c) can be highly subjective — although, in my mind, any state statute that tries to define what is and is not “religion” necessarily fosters excessive entanglement with religion.

But, as for (b), there can be little reasonable dispute, as far as I can tell, that, as written, Tennessee’s law — which uses words like “minister,” “preacher,” “pastor,” “priest,” “rabbi,” “church,” and “temple,” all of which have formal religious connotations — explicitly advances formal, ancient religions over organizations like the newer-age ULC when it comes to marriage solemnization.  Randy McNally’s comment that “It should be a minister [solemnizing marriages], and should be a minister that has credentials” certainly would not help a defense on the merits.

Here’s hoping that a court gets a chance to agree with me one day — and then does so.