Leslie Rutledge: Unclear Whether JPs Must Officiate Gay Weddings

LITTLE ROCK – It’s unclear whether courts would require a justice of the peace to officiate over a same-sex wedding, even though clerks are required to issue licenses to gay couples, Arkansas Attorney General Leslie Rutledge said Wednesday.

The Republican attorney general said in a non-binding advisory opinion that JPs — who are elected on counties’ governing boards — could use a new religious objections law as a defense if they refuse to perform gay weddings. But Rutledge said it’s unclear whether courts would agree with that defense.

“The threshold question would be whether a JP in this circumstance could successfully show that requiring him or her to solemnize a same-sex marriage would be a ‘substantial burden’ on the JP’s religious exercise,” Rutledge wrote.

Under Arkansas law, justices of the peace — along with other elected officials such as judges, the governor and mayors — are allowed to officiate over weddings but it’s not a required part of their official duties. Rutledge noted that JPs can decide to not perform weddings at all.

Rutledge in June told county clerks they were required to issue marriage licenses to same-sex couples who requested them after the U.S. Supreme Court legalized gay marriage nationwide.

Arkansas lawmakers earlier this year approved a law that prevents the government from infringing on someone’s religious beliefs without a compelling interest, a measure that was rewritten in the final days of the legislative session over concerns that an initial version was anti-gay.

There are more than 700 JPs serving in the state, and it’s unclear how many of them perform weddings. An advocate of the law said he believed that it would protect JPs who refuse to perform same-sex weddings, especially if other justices were available to officiate for gay couples.

“Marriage is a big deal and putting your name on a marriage license as one that sanctions it is a big deal,” said Jerry Cox, head of the Arkansas Family Council, which backed the religious objections law.

Rutledge said there may be more protections for a JP who is also a minister and refuses to officiate a gay wedding. But she said that would depend on whether they were officiating weddings in their religious or elected role. She said she believed a court would allow the JP to refuse the gay wedding if they were acting as a minister.

“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,” she wrote. “This would be a gross infringement on the minister’s religious exercise that would easily satisfy the substantial burden test.”

Holly Dickson, legal director for the American Civil Liberties Union of Arkansas, said JPs who don’t want to perform same-sex weddings shouldn’t officiate any since it’s not a required part of their job.

“But if they choose to perform marriages, they can’t refuse to perform marriages for same-sex couples because it would violate equal protection,” she said.

Sen. Bruce Maloch said he requested the opinion because of questions from some justices of the peace in his district. Maloch said he didn’t believe some of the questions would have clear-cut answers unless a JP refusing to officiate a same-sex wedding prompts a lawsuit.

“I think the AG gave about as much direction as she could have,” Maloch, a Democrat from Magnolia, said.

The Attorney General’s Opinion

Questions: (Q1) If a current justice of the peace (“JP”) or county judge (“Judge”) chooses to solemnize marriages pursuant to A.C.A. 9-11-213, must the official adopt an “all or nothing” policy — marrying all couples who request the service? (Q2) If a current JP or Judge chooses to solemnize marriages pursuant to A.C.A. 9-11-213, may the official choose to solemnize some marriages, while declining to solemnize others? (Q3) If the answer to question 1 is “yes,” and a current JP or Judge chooses a general policy of not solemnizing marriages, may the official make occasional exceptions to marry family members or close friends? (Q4) If a former JP or Judge chooses to solemnize marriages pursuant to A.C.A. 9-11-213, must the official adopt an “all or nothing” policy — marrying all couples who request the service? (Q5) If a former JP or Judge chooses to solemnize marriages pursuant to A.C.A. 9-11-213, may the official choose to solemnize some marriages while declining to solemnize others? (Q6) If the answer to question 4 is “yes,” and a former JP or Judge chooses a general policy of not solemnizing marriages, may the official make occasional exceptions to marry family members or close friends? (Q7) If a current JP or Judge is also a minister of the gospel and properly registered to solemnize marriages as a minister of the gospel pursuant to A.C.A. 9-11-214, may the official choose, as a minister of the gospel, to solemnize some marriages, while declining to solemnize others? (Q8) If a former JP or Judge permitted to perform marriages under A.C.A. 9-11-213 is also a minister of the gospel and properly registered to solemnize marriages as a minister of the gospel pursuant to A.C.A. 9-11-214, may the official choose, as a minister of the gospel, to solemnize some marriages, while declining to solemnize others?

RESPONSE: Given your questions’ context–especially because your last two questions ask about ministers–I take your questions to be asking whether JPs who object (on religious grounds) to solemnizing same-sex marriages would be subject to liability. While, under current state law, it is not clear how such a lawsuit would be brought, I will address how a court faced with such a suit would likely proceed. In my opinion, an Arkansas court would have to interpret and apply Arkansas’s Religious Freedom Restoration Act (ARFRA). The analysis, which would be substantially the same for Questions 1–6, would turn on how an Arkansas court would handle the key circuit splits among federal courts that have interpreted the same provisions in the federal RFRA. The answer to Questions 7 and 8 depends on the capacity in which the JP/minister is solemnizing the marriage. 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.

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