CINCINNATI (CN) — Ministers of nondenominational churches ordained online cannot be prevented from solemnizing marriages, the Universal Life Church Monastery argued before an appeals court panel on Thursday.
The monastery, a nonprofit religious organization based in Washington, challenged a Tennessee law that prohibits people who receive "online ordinations" from solemnizing marriages, claiming the statute violates its rights to free speech and free exercise of religion.
Universal Life Church filed its federal lawsuit alongside several internet-ordained ministers in 2019, and alleged the state discriminated against its religion by allowing only the more mainstream faiths to solemnize marriages in Tennessee.
Although none of its ministers have been prosecuted under the statute, the church argued the threat of misdemeanor punishment for improper licensing gave it standing to bring the lawsuit.
Chief U.S. District Judge Waverly Crenshaw Jr. agreed the threat of enforcement gave the church standing to bring its claims, and ultimately denied all but one defendant's motion to dismiss on the grounds of sovereign immunity in December 2020.
Crenshaw, an appointee of Barack Obama, granted Governor Bill Lee's motion to dismiss the claims against him after he determined the Republican governor had no significant connection to the statute.
Tennessee Attorney General Herbert Slatery III, several district attorneys general, and numerous county clerks had their motions to dismiss denied, however, primarily because of their ability to enforce the ban and nullify any marriage licenses signed by the ministers.
In his brief to the Sixth Circuit, Slatery argued there is no connection between his office and possible enforcement of the statute, and so he, along with other state officials, are protected by sovereign immunity.
"State defendants have no authority to enforce the challenged law," the brief said, "nor have they attempted or threatened to enforce it against plaintiffs. ... It follows that the ex parte Young exception [to immunity] does not apply."
Slatery urged the Cincinnati-based appeals court to overturn Crenshaw's decision, arguing the district judge committed a fundamental error because the statute does not contain any enforcement provisions, let alone any that could be implemented by the attorney general's office.
In his brief to the appeals court, Putnam County Clerk Wayne Nabors argued his duties in certifying marriage licenses are purely clerical and that his lack of discretion entitles him to sovereign immunity.
Much like Slatery, Nabors argued he has never attempted to enforce the statute, which deprives the church and its ministers of standing to bring their constitutional claims. He cited the 2019 Sixth Circuit case Ermold v. Davis, in which a county clerk in Kentucky was sued for her refusal to issue marriage licenses to gay couples, and emphasized clerks are shielded by immunity because they are afforded "no wiggle room" in their official duties.
"Because the state of Tennessee, like the State of Kentucky in the Ermold case, controls every aspect of how county clerks issue marriage licenses, Nabors acts on Tennessee's behalf when issuing and processing marriage licenses, so sovereign immunity protects him from this official capacity suit filed against him," the clerk's brief states.
In its brief, Universal Life Church argued that if the state is granted immunity in this case, "it could ban individuals from solemnizing marriages, whether because of their race, the clothes they wear, or their political views, and no one could challenge that law because no one 'enforces' it." (Emphasis in original.)
Attorney Matt Cloutier argued on Thursday on behalf of the state, telling the three-judge panel Crenshaw's decision must be reversed because the statute has no enforcement mechanism and "no judicial decision can address the plaintiffs' alleged injuries."
Chief U.S. Circuit Judge Jeffrey Sutton, an appointee of George W. Bush, asked the attorney whether his clients would be willing to declare they would not enforce the law at any point in the future, but Cloutier hesitated.
He said Slatery and the district attorneys he represents "lack the authority to enforce the law," but told the panel he could not say they will never enforce it in the future.
"I'm not frustrated with you," Sutton replied, but "I don't understand why we can't simplify things. It helps everybody."
Putnam County attorney Jeff Jones argued on behalf of Nabors, and told the panel that because the individual plaintiffs who accused the clerk of refusing a license had their claims dismissed, his client should no longer be named in the suit.
Sutton asked Jones if he would make the concession that his client would not seek to enforce the law in the future, and the attorney agreed.
Attorney Ambika Kumar argued on behalf of the Universal Life Church, disputing claims there was no threat of enforcement.
The attorney said the statute "directly attacks" the church, whose ministers have been dissuaded from solemnizing marriages out of fear they may be invalidated in the future.
"This attorney general has, over time, injected himself into Tennessee marriage laws," Kumar said, "and is trying to insulate the law from review. [He] has created a situation where there ostensibly is no one to sue."
"Why not claim victory?" Sutton asked, after he pointed out the defendants claim they cannot enforce the law. "If they make concessions and we issue a decision, what is the threat?"
"It already has chilled the conduct of the ministers," the attorney answered.
Kumar was also quick to point out that when a new attorney general or governor takes office, enforcement of the law could change to the detriment of her clients.
"In a world in which no one is going to enforce it," Sutton said, "[the lawsuit] becomes symbolic. If they're accepting the licenses and saying they're not going to enforce it, I'm not sure what to do."
Attorney Lisa Carson also argued on behalf of Williamson County Clerk Elaine Anderson.
Sutton was joined on the panel by U.S. Circuit Judges Jane Stranch and John Bush, appointees of Obama and Donald Trump, respectively. No timetable has been set for the court's decision.
Although the Sixth Circuit is based in Cincinnati, Thursday's arguments took place in Cleveland.
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