Judges: Easterbrook
Filed: Jul. 14, 2014
Latest Update: Mar. 02, 2020
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 12---3751 CENTER FOR INQUIRY, INC., and REBA BOYD WOODEN, Plaintiffs---Appellants, v. MARION CIRCUIT COURT CLERK and MARION COUNTY PROSECUTOR, Defendants---Appellees. _ Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:12---cv---00623---SEB---DML — Sarah Evans Barker, Judge. _ ARGUED APRIL 19, 2013 — DECIDED JULY 14, 2014 _ Before POSNER, EASTERBROOK, and WILLI
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 12---3751 CENTER FOR INQUIRY, INC., and REBA BOYD WOODEN, Plaintiffs---Appellants, v. MARION CIRCUIT COURT CLERK and MARION COUNTY PROSECUTOR, Defendants---Appellees. _ Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:12---cv---00623---SEB---DML — Sarah Evans Barker, Judge. _ ARGUED APRIL 19, 2013 — DECIDED JULY 14, 2014 _ Before POSNER, EASTERBROOK, and WILLIA..
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 12-‐‑3751
CENTER FOR INQUIRY, INC., and REBA BOYD WOODEN,
Plaintiffs-‐‑Appellants,
v.
MARION CIRCUIT COURT CLERK and MARION COUNTY
PROSECUTOR,
Defendants-‐‑Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:12-‐‑cv-‐‑00623-‐‑SEB-‐‑DML — Sarah Evans Barker, Judge.
____________________
ARGUED APRIL 19, 2013 — DECIDED JULY 14, 2014
____________________
Before POSNER, EASTERBROOK, and WILLIAMS, Circuit Judg-‐‑
es.
EASTERBROOK, Circuit Judge. Indiana Code §31-‐‑11-‐‑6-‐‑1
specifies who may solemnize a marriage—that is, perform
the final steps that unite persons who hold marriage licens-‐‑
es. The list includes religious officials designated by reli-‐‑
gious groups but omits equivalent officials of secular groups
such as humanist societies. Although three states (Florida,
2 No. 12-‐‑3751
Maine, and South Carolina) authorize humanists to solem-‐‑
nize marriages by becoming notaries public, Indiana does
not (notaries cannot perform marriages in Indiana)—nor
does it provide any other way for private secular groups to
exercise this authority. Four states (Alaska, Massachusetts,
Vermont, and Virginia) allow anyone to solemnize a mar-‐‑
riage, and another six (Colorado, Kansas, Montana, Penn-‐‑
sylvania, New York, and Wisconsin) allow the couple to sol-‐‑
emnize their own marriage, but neither option is available in
Indiana. Here is the statute:
Marriages may be solemnized by any of the following:
(1) A member of the clergy of a religious organization (even if
the cleric does not perform religious functions for an individual
congregation), such as a minister of the gospel, a priest, a bishop,
an archbishop, or a rabbi.
(2) A judge.
(3) A mayor, within the mayor'ʹs county.
(4) A clerk or a clerk-‐‑treasurer of a city or town, within a county
in which the city or town is located.
(5) A clerk of the circuit court.
(6) The Friends Church, in accordance with the rules of the
Friends Church.
(7) The German Baptists, in accordance with the rules of their so-‐‑
ciety.
(8) The Bahai faith, in accordance with the rules of the Bahai
faith.
(9) The Church of Jesus Christ of Latter Day Saints, in accord-‐‑
ance with the rules of the Church of Jesus Christ of Latter Day
Saints.
(10) An imam of a masjid (mosque), in accordance with the rules
of the religion of Islam.
No. 12-‐‑3751 3
Ind. Code §31-‐‑11-‐‑6-‐‑1. Anyone not on this list who purports
to solemnize a marriage commits a crime. Ind. Code §31-‐‑11-‐‑
11-‐‑6. The state accommodates some religions, such as the
Quakers (the Society of Friends, which the statute calls the
“Friends Church”), that do not have clergy, but does not ac-‐‑
commodate others, such as Buddhists, that lack clergy-‐‑led
structures.
This suit under 42 U.S.C. §1983 contends that Indiana’s
marriage-‐‑solemnization statute violates the Constitution’s
First Amendment (applied to the states through the Four-‐‑
teenth) by giving some religions a privileged role. Plaintiff
Center for Inquiry is a nonprofit corporation that describes
itself as a humanist group that promotes ethical living with-‐‑
out belief in a deity. The Center seeks to show, among other
things, that it is possible to have strong ethical values based
on critical reason and scientific inquiry rather than theism
and faith. The Center maintains that its methods and values
play the same role in its members’ lives as religious methods
and values play in the lives of adherents.
Reba Boyd Wooden is the Center’s leader in Indiana and
is among 23 persons across the nation certified by the Center
as “secular celebrants”. She has been asked by members to
solemnize their marriages, which she wants to do but can’t
because Indiana does not recognize humanist leaders as
“clergy”—nor is the Center willing to classify itself as a “re-‐‑
ligious organization” in order to allow Wooden to be treated
as “clergy”.† Two members who wanted Wooden to solem-‐‑
† Wooden formerly held a designation from the Humanist Society, a
group distinct from the Center, as a “humanist celebrant” and solem-‐‑
nized weddings in that capacity. The Humanist Society has informed
Indiana that it is a religious organization, and the state treated Wooden
4 No. 12-‐‑3751
nize their marriage—so that the occasion could be marked
by expressions and ceremonies appropriate to their beliefs—
were among the plaintiffs, but in October 2012, with the suit
still pending in the district court, their marriage was solem-‐‑
nized without Wooden’s aid. Only the Center and Wooden
remain as plaintiffs.
The district court denied plaintiffs’ request for an injunc-‐‑
tion and entered judgment for the defendants, who enforce
Ind. Code §31-‐‑11-‐‑6-‐‑1 in Marion County (Indianapolis). 2012
U.S. Dist. LEXIS 170243 (S.D. Ind. Nov. 30, 2012). The district
court characterized subsections (1) and (6) through (10) as
accommodations of religion and observed that any accom-‐‑
modation differentiates the treatment of religious adherents
from some non-‐‑religious groups. It also observed that any-‐‑
one who obtains “clergy” credentials from an enterprise
such as the Universal Life Church can solemnize a wedding.
Indiana states that a humanist group could call itself a reli-‐‑
gion, which would be good enough for the state. Finally, it
noted that a humanist celebrant could conduct an extra-‐‑legal
ceremony, which the not-‐‑yet-‐‑married couple could follow
up with a trip to the local court to have the clerk perform a
legally effective solemnization.
Plaintiffs find these options unacceptable; they are un-‐‑
willing to pretend to be something they are not, or pretend
to believe something they do not; they are shut out as long
as “clergy” in her role as that Society’s celebrant. The Center, by contrast,
refuses to accept the religious organization label or allow its members
“clergy” status. When Wooden became an employee of the Center in
2007, she relinquished her designation as a celebrant for the Humanist
Society. Her claim against the state therefore presents a justiciable con-‐‑
troversy.
No. 12-‐‑3751 5
as they are sincere in following an ethical system that does
not worship any god, adopt any theology, or accept a reli-‐‑
gious label. Adherents to Buddhism, Jainism, Shinto, and
some forms of Taiosm call themselves “religious” despite the
absence of gods in their faiths; Indiana may treat some of
these religions as having “clergy” (we discuss limitations
later). But humanists groups that reject the label “religion”
are excluded from Indiana’s list of permissible celebrants.
It is hard to avoid the district court’s point that accom-‐‑
modations, by definition, treat the accommodated religion
differently from one or more secular groups. See Presiding
Bishop v. Amos, 483 U.S. 327, 334 (1987); Salazar v. Buono, 559
U.S. 700, 719 (2010) (plurality opinion). But this cannot be a
complete answer to plaintiffs’ contention that humanists are
situated similarly to religions in everything except belief in a
deity (and especially close to those religious that lack dei-‐‑
ties). An accommodation cannot treat religions favorably
when secular groups are identical with respect to the attrib-‐‑
ute selected for that accommodation.
Neutrality is essential to the validity of an accommoda-‐‑
tion. See Kiryas Joel Village School District v. Grumet, 512 U.S.
687, 703 (1994); Cutter v. Wilkinson, 544 U.S. 709, 723–24
(2005). A state could not, for example, permit Catholic
priests to solemnize weddings while forbidding Baptist min-‐‑
isters to do so. See, e.g., McCreary County v. ACLU, 545 U.S.
844, 860 (2005); Larson v. Valente, 456 U.S. 228, 244 (1982)
(state can’t choose favorites among denominations). See
generally Michael W. McConnell, Accommodation of Religion,
1985 Sup. Ct. Rev. 1; Michael W. McConnell, Accommodation
of Religion: An Update and a Response to the Critics, 60 Geo.
Wash. L. Rev. 685 (1992); Kent Greenawalt, Establishment
6 No. 12-‐‑3751
Clause Limits on Free Exercise Accommodations, 110 W. Va. L.
Rev. 343 (2007).
The Supreme Court also has forbidden distinctions be-‐‑
tween religious and secular beliefs that hold the same place
in adherents’ lives. See, e.g., Welsh v. United States, 398 U.S.
333 (1970) (serious and sincere moral system must be treated
the same as theistic religion for the purpose of conscientious
objection); United States v. Seeger, 380 U.S. 163, 166 (1965)
(same); Torcaso v. Watkins, 367 U.S. 488, 495 & n.11 (1961)
(secular humanism must be treated the same as religion). We
recognize that Welsh and Seeger were decided under statutes
rather than the Constitution (the Court interpreted the con-‐‑
scription statutes to avoid a declaration of unconstitutionali-‐‑
ty), but Torcaso was a constitutional decision. And although
both the text and note 11 in Torcaso might be characterized as
dictum, we held in Kaufman v. McCaughtry, 419 F.3d 678 (7th
Cir. 2005), that, when making accommodations in prisons,
states must treat atheism as favorably as theistic religion.
What is true of atheism is equally true of humanism, and as
true in daily life as in prison.
The district court stated that none of these decisions mat-‐‑
ters, because in plaintiffs’ own view humanism is not a reli-‐‑
gion. That misses the point of Torcaso and Kaufman. Atheists
don’t call their own stance a religion but are nonetheless en-‐‑
titled to the benefit of the First Amendment’s neutrality
principle, under which states cannot favor (or disfavor) reli-‐‑
gion vis-‐‑à-‐‑vis comparable secular belief systems. Plaintiffs
contend that, when a secular moral system is equivalent to
religion except for non-‐‑belief in God—is, indeed, equivalent
to religions such as Shinto and Jainism that do not worship
gods—those who embrace that secular system want their
No. 12-‐‑3751 7
own views to be expressed by celebrants at marriages, the
state must treat them the same way it treats religion. A state
may accommodate religious views that impose extra bur-‐‑
dens on adherents—for example, a state may and sometimes
must allow Seventh-‐‑day Adventists to get unemployment
benefits even though they won’t work on Saturday, see Sher-‐‑
bert v. Verner, 374 U.S. 398 (1963)—but this does not imply an
ability to favor religions over non-‐‑theistic groups that have
moral stances that are equivalent to theistic ones except for
non-‐‑belief in God or unwillingness to call themselves reli-‐‑
gions.
Indiana maintains that humanists are not excluded. Ad-‐‑
herents to faiths with clergy can be married in two steps:
first they obtain a license, Ind. Code §31-‐‑11-‐‑4-‐‑1, and then
they have the marriage solemnized by a priest or equivalent
person in the list in §31-‐‑11-‐‑6-‐‑1. (Plaintiffs do not challenge
the licensure statute, because religion is irrelevant to that
procedure.) Humanists could achieve the same result in
three steps: first get a license, then have a humanist celebrant
perform a public ceremony appropriate to their beliefs, and
finally have a clerk of court or similar functionary solemnize
the marriage. That’s true enough—but it just restates the dis-‐‑
crimination of which plaintiffs complain. Lutherans can sol-‐‑
emnize their marriage in public ceremonies conducted by
people who share their fundamental beliefs; humanists can’t.
Humanists’ ability to carry out a sham ceremony, with the
real business done in a back office, does not address the inju-‐‑
ry of which plaintiffs complain.
Indiana relies on Marsh v. Chambers, 463 U.S. 783 (1983),
for the proposition that states may support religious views
without extending similar favors to non-‐‑religious groups.
8 No. 12-‐‑3751
Greece v. Galloway, 134 S. Ct. 1811 (2014), reiterates Marsh’s
holding. But neither decision can be divorced from its con-‐‑
text. Both concern the long-‐‑established practice of opening
legislative meetings with prayer. That is to say, they concern
what a chosen agent of the government says as part of the
government’s own operations. Cf. Garcetti v. Ceballos, 547
U.S. 410 (2006). They do not concern how a state regulates
private conduct. Section 31-‐‑11-‐‑6-‐‑1, by contrast, is regulatory.
It specifies which private actors are entitled to engage in a
particular act in private venues. So although Marsh and
Greece show that a government may, consistent with the First
Amendment, open legislative sessions with Christian pray-‐‑
ers while not inviting leaders of other religions, they do not
begin to suggest that a state could limit the solemnization of
weddings to Christians, while excluding Judaism, Islam,
Buddhism, and—humanism.
We mention Buddhism in particular because this statute
does exclude Buddhists, who lack members of the clergy in
the sense subsection (1) uses that phrase, and who are not
covered in subsections (6) through (10). Counsel for Indiana
confirmed this at oral argument, telling us that Buddhists
are excluded because their religion does not treat marriage
as a sacrament and does not have (in the brief’s words) an
“organizational commitment to … marriage.” Nor, the state
adds, does secular humanism treat marriage as holding a
special place in its set of values. (Rastafarianism and Jainism,
among other religions, apparently would encounter the
same obstacle in Indiana.) Counsel for Indiana added that
Buddhists (and humanists) are ineligible because they lack
“clergy.” Baha’i and German Baptists would be ineligible for
the same reason, except that they have their own exceptions
in §31-‐‑11-‐‑6-‐‑1. All of this supposes that states can define
No. 12-‐‑3751 9
“clergy,” though Hosanna-‐‑Tabor Evangelical Lutheran Church
and School v. EEOC, 132 S. Ct. 694 (2012), holds that govern-‐‑
ment must recognize as clergy those persons designated by
the faith itself.
At all events Quakers, who lack clergy and do not treat
marriage as a sacrament, receive an accommodation in sub-‐‑
section (6), while adherents to Shinto, which has clergy but
no immortal god, apparently can perform marriages under
subsection (1). Thus Indiana not only discriminates against
non-‐‑religious ethical groups such as humanists but also dis-‐‑
criminates among religions, preferring those with a particu-‐‑
lar structure (having clergy) and particular beliefs (according
a sacred status to marriage).
The statutory list is not limited to religions that have “an
organizational commitment to … marriage”. At oral argu-‐‑
ment Indiana’s lawyer said that the high priestess of the
Church of Satan (along with Wiccans and those who wor-‐‑
ship Baal) could solemnize marriages under subsection (1),
while Buddhists, many other religions, and humanists can-‐‑
not. This discrimination among ethical codes adds to Indi-‐‑
ana’s problems under the decisions to which we have re-‐‑
ferred. See Larson, 456 U.S. at 244 (“The clearest command of
the Establishment Clause is that one religious denomination
cannot be officially preferred over another.”).
These examples, and the state’s willingness to recognize
marriages performed by hypocrites, show that the statute
violates the Equal Protection Clause of the Fourteenth
Amendment as well as the First Amendment. It is irrational
to allow humanists to solemnize marriages if, and only if,
they falsely declare that they are a “religion.” It is absurd to
give the Church of Satan, whose high priestess avows that
10 No. 12-‐‑3751
her powers derive from having sex with Satan, and the Uni-‐‑
versal Life Church, which sells credentials to anyone with a
credit card, a preferred position over Buddhists, who em-‐‑
phasize love and peace. A marriage solemnized by a self-‐‑
declared hypocrite would leave a sour taste in the couple’s
mouths; like many others, humanists want a ceremony that
celebrates their values, not the “values” of people who will
say or do whatever it takes to jump through some statutory
hoop.
Marsh and Greece observe that the meaning of the Consti-‐‑
tution’s religion clauses depends in part on historical prac-‐‑
tices. One cannot understand centuries-‐‑old language apart
from the culture in which the language was written and
originally operated. The history of marriage is that the state
came late to the party. For hundreds of years, in the legal
tradition that we inherited from England, the persons who
could solemnize marriages included clergy, public officials,
sea captains, notaries public, and the celebrants themselves.
When Indiana codified the list in 1857 (General Laws ch. 44
§3) it left off captains, notaries, and the marrying couple,
though it included Quakers and German Baptists. It also left
off Islam, Baha’i, and Mormons, which now have their own
accommodations in subsections (8) through (10).
The current statute discriminates arbitrarily among reli-‐‑
gious and ethical beliefs. Plaintiffs say that they would be
satisfied if notaries were added to the list; nothing in hu-‐‑
manism makes it inappropriate for a leader (or any other
member) to be a notary public. Since Indiana has never giv-‐‑
en a reason for excluding notaries, while including every
mayor (subsection (3)) and clerk of court (subsection (5)),
that hardly seems an excessive request.
No. 12-‐‑3751 11
The judgment is reversed, and the case is remanded with
instructions to issue an injunction allowing certified secular
humanist celebrants to solemnize marriages in Indiana—to
do this with legal effect, and without risk of criminal penal-‐‑
ties. That is the relief plaintiffs request, and defendants have
not made a counterproposal. If Indiana amends its statute to
allow notaries to solemnize marriages, the district court
should be receptive to a motion to modify the injunction un-‐‑
der Fed. R. Civ. P. 60(b)(5) to minimize the extent to which a
federal decree supersedes the state’s own solution to the
problems we have identified.
