Suit challenging Nevada marriage religious test to continue after surviving dismissal motion

By Steve Green

Monday, Jan. 23, 2012 | 6:39 p.m.

A federal judge has refused to dismiss an American Civil Liberties Union lawsuit challenging Nevada’s "religious test" for officials to perform marriage ceremonies.

U.S. District Judge Philip Pro, in a ruling signed last week, indicated there may be merit in claims by ACLU attorneys that the religious test is unconstitutional.

The test says marriages can be performed by just two classes of people — those affiliated with a valid religious organization and government officials including judges and civil marriage commissioners.

Attorneys for the ACLU filed suit in March against the state and Clark County, which handles marriage matters in the Las Vegas area.

Their suit represents a couple who want to be married by nongovernmental officials who are not affiliated with a religion. It also represents an atheist and a member of the American Humanist Association who have been denied a certificate to solemnize marriages as well as a notary public who didn’t bother to seek a certificate because she knew she would be denied on the religious-test grounds.

The suit said the religious test violates the constitutional separation of church and state. The plaintiffs said they don’t object to religious officials performing marriages — they object to the law limiting such rights to religious and governmental officials.

During oral arguments in September, attorneys for Clark County asked that the suit be dismissed, saying the fact that a religious test is required for nongovernmental officials to conduct weddings does not necessarily mean the officials’ religious beliefs are part of the ceremonies they perform.

Clark County also argued the county and state have a legitimate interest in ensuring marriages are legitimate and are conducted properly — and participation by religious officials in marriages is a custom that predates the Bill of Rights.

In his order last week, Pro dismissed Attorney General Catherine Cortez Masto from the suit after attorneys for her office argued it has nothing to do with enforcing marriage laws, leaving that up to counties.

But Pro refused to dismiss the lawsuit against Clark County, meaning county attorneys and the ACLU will have to provide more briefing to flesh out the issues and potentially go to trial over the constitutional dispute.

Plaintiffs who applied for marriage solemnization certificates but were rejected by Clark County for their failure to be associated with a church or religion "have suffered an injury," Pro wrote in his ruling.

Examining whether the Nevada marital law unconstitutionally advances religion or fosters excessive governmental entanglement with religion, Pro wrote "the last prong is particularly troublesome in this case" because the statute requires county clerks to determine would-be marriage officials are associated with valid religions.

"Were the county clerk deemed to have unfettered discretion to decide if a particular religious organization is a bona fide religion, that would likely constitute a significant entanglement," Pro wrote in his order.

"The Nevada statute appears to give unfettered discretion to the county clerk to decide whether a particular organization qualifies as a religious organization to trigger eligibility for the applicant seeking a certificate," Pro’s order said.