In response to questions over whether or not former and current Justices of the Peace must officiate same-sex weddings in Arkansas, Attorney General Leslie Rutledge’s office has released an opinion essentially saying it depends on the circumstances.
Senator Bruce Maloch (D–Magnolia) sent a series of questions to the Attorney General regarding the extent to which a Justice of the Peace can be forced to solemnize marriages. Under Arkansas law, a Justice of the Peace can choose to be authorized to solemnize marriages, and a retired J.P. who has served at least two terms on the county quorum court can solemnize marriages even after leaving the quorum court.
Here is a brief overview of the Attorney General’s opinion.
Ministers Are Protected
One thing the Attorney General made extremely clear: Ministers cannot be forced to solemnize same-sex marriages if doing so violates their deeply-held religious convictions.
Sen. Maloch asked A.G. Rutledge if a minister who is also a current or retired J.P. can be forced to solemnize a same-sex marriage. Under Arkansas law, marriages solemnized by ordained ministers are recognized by the state; the Attorney General’s opinion makes it very clear: If a minister is solemnizing a marriage in a ministerial capacity, the state cannot force that minister to solemnize a union in violation of their deeply-held religious convictions.
The opinion states,
“If the JP/minister would be solemnizing the marriage in his or her capacity as a minister, then the JP/minister certainly can decline to solemnize same-sex marriages. . . .
“[I]f the JP/minister is solemnizing the marriage in his or her capacity as a minister, then, in my opinion, a court would hold that the JP/minister may refuse to solemnize the marriages of same-sex couples. If the court were to rule otherwise, then the court would effectively be holding that a minister could not perform his or her religious duties simply because of the current or former public service. This would be a gross infringement on the minster’s religious exercise that would easily satisfy the substantial-burden test [found in the Arkansas Religious Freedom Restoration Act].”
In other words, a minister who is also a current or retired Justice of the Peace cannot be forced to solemnize a same-sex marriage if doing so violates his or her deeply-held religious convictions. Logically, that ought to apply to all ministers everywhere in Arkansas as well.
For Justices of the Peace, It Depends on the Circumstances
As to whether or not a current or retired Justice of the Peace who is not a minister can be forced to perform same-sex marriages, the Attorney General more or less said it will depend on the circumstances.
The A.G.’s opinion notes several problems with the scenarios presented by Sen. Maloch’s question.
First, if a Justice of the Peace declined to solemnize a same-sex ceremony, it is unclear how a same-sex couple would go about trying to force the J.P. do so. Theoretically the Justice of the Peace could be sued by the couple. However, the A.G. writes,
“Under current Arkansas law, it is not clear how such a lawsuit would be brought in state court. For purposes of this opinion, I will take as a given that such a suit could be filed, and I will assess how a court might resolve the dispute. I will also note that if a private party sued a JP in federal court under 42 U.S.C. § 1983, the analysis might be different. “
In other words, the outcome of the suit would depend on where the suit was filed, and it is not clear how such a lawsuit would be filed in the first place.
Assuming a lawsuit could be filed against the Justice of the Peace in state court, the Attorney General’s office acknowledges the state’s new Religious Freedom Restoration Act–which prevents the state from imposing a “substantial burden” on a person’s free exercise of religion–certainly would apply to a Justice of the Peace. The question is whether or not being forced to solemnize same-sex marriages constitutes a “substantial burden.”
Again, the Attorney General writes,
“In my opinion, the question of substantial burden is the most difficult to answer in this context. . . . If the court followed the Fourth, Ninth, and Eleventh Circuits and adopted the compulsion test, then a JP would probably not be able to show a substantial burden. . . . In contrast, if the court followed the Seventh, Eighth, and Tenth circuits, then the JP would have a greater likelihood of showing a ‘substantial burden.’ I cannot be definitive on the outcome of a religiously-motivated test when applied to JPs as it is likely that any given case will depend on its own facts.”
In other words, the outcome of a lawsuit against a J.P. would depend on the set of judicial precedent the judge presiding over the case chose to utilize.
The A.G.’s opinion gives the impression that, if push came to shove, a court could force a Justice of the Peace to solemnize same-sex marriages in spite of whatever deeply-held religious objections the J.P. might have. This seems to stem from the fact that no one forces a person to become a Justice of the Peace, and no one forces Justices of the Peace to volunteer to solemnize marriages. The logic flows that if a J.P. is willing to solemnize any marriages, then he or she must be willing to solemnize all marriages.
However, by the same token no one forces a person to become a doctor or a nurse, but we still respect their rights of conscience when it comes to certain procedures they may find objectionable–particularly abortion.
During times of war, we permit members of the military to file as conscientious objectors. Conscientious objectors are assigned non-combative duties. It’s a compromise that allows the military to continue to function while also protecting the consciences of its members.
Similar standards can be applied to Justices of the Peace. If an elected official finds a particular duty unconscionable–and if someone else is willing to perform that duty–then we ought to be able to strike a compromise.
The vast majority of Arkansans oppose same-sex marriage. However, there clearly is no shortage of people willing to solemnize same-sex marriages in Arkansas, either. With that in mind, we really should not have to force anyone–including a past or present Justice of the Peace–to solemnize a same-sex marriage if they do not want to.
America respects a person’s right of conscience even when our national security is on the line. Surely we can respect a person’s conscience concerning marriage.