Pointless Nevada ordination requirements being challenged

Nevada is one of the many states that has a totally pointless law requiring that, in order for the state to consider your marriage to be valid, it must be done under the supervision of an "ordained" (whatever that means) affiliated with a "church or religious organization" (whatever that means), or a government official (who you must pay). Now that the American Humanist Association has offered itself up as a test case of this clearly pointless law, the ACLU is suing on their behalf after two of their members were denied ordination for not being ordained members of religious groups.

So before the incredibly simple legal analysis is done here, let me point out that my own state, Massachusetts, also has a requirement like Nevada's, but it's slightly broader: it will accept any ordination.

I say again: any ordination.

Including mine:

Yep, just last week I sent a copy of that certificate from the Universal Life Church off with a printout of a stock email identifying me as an "ordained member in good standing" of that rather secular church and the letter back from the Office of the Secretary of Massachusetts saying that my application for certification was accepted. It was that easy, because laws of that kind are so flagrantly unconstitutional that to ever enforce them is to immediately end them. See, that's the thing, you can really only challenge a law in court if the law actually impairs you in some real way, not just potentially impairs you, or offends you.

Unlike Massachusetts, which has the wisdom to treat its ancestral theocratic laws as the joke they are, Nevada has unwisely chosen to actually take its regulations of this kind seriously. The legal issue is so painfully obvious, however, that the government of Nevada has just decided to dump the burden on the actual county that chose to enforce the law, showing about how much confidence the lawyers for the state of Nevada have in that law:

Nevada Attorney General Catherine Cortez Masto asked that she be dismissed from the lawsuit because her office does not enforce the state’s marriage law, leaving that up to Clark and other counties.

And make no mistake, the law is incredibly clear. If you are in any way interacting with anyone or anything on behalf of the government, or at the government's request or clear permission, or in any way acting as a representative of the government, the government is theoretically not even allowed to know what religion you are, much less condition your access to that representative capacity on a very specific set of religious beliefs. In this case, the people who are allowed to oversee the ceremony that legitimizes a marriage license are required to be ordained members of religions, unless you want to pay the government a fee to do your wedding itself. The legal analysis practically writes itself.

You might think that the requirement for being ordained in a religion is broad enough to include pretty much everyone (except atheists), but just the terms involved are rich in theological and religious specificity. If you require ordination, that means that you only accept into the position of marriage supervisor those people who believe that God or the gods recognize one class of people as the pious leaders and the others as the students, or followers, of those leaders. It requires you to only accept religions that have specific doctrines that are detailed enough to required a certification process for their teachers. It requires you to omit any religion in which religious authority is earned by intellect, charisma, or title, instead of by formal training. It excludes non-doctrinal religions. It excludes egalitarian religions. It super-excludes atheism. And this doesn't even get into the question of what a religion actually is.

The Constitution is very specific: there are NO religious tests for any public office. "Public office" is so broad that it has been ruled even to include notary publics. Anybody who acts at all under the auspices of the government is a government actor for purposes of the Article VI Religious Test clause. The constitutionality of the Nevada statute, or any statute like it in any other state, is a joke, which is why not even Nevada will defend its own statute, leaving it up to the county itself to defend it. And we have a taste of their legal reasoning already, which is where the real high comedy in this case is:

Asking [Las Vegas Judge Philip Pro] to dismiss the ACLU-backed challenge, [Clark County Deputy District Attorney Michael] Foley told the court that the county and state have a compelling interest in ensuring that marriages are legitimate and conducted properly. “If you allow every Elvis impersonator to go around marrying people,” he said, “you’re going to have some problems with paperwork and so forth.”

The notion of compelling interest is tricky when measured against clear constitutional violations. For example, all Americans have free speech rights- but if you exercise your free speech rights in a certain way while you're in middle school (bellowing obscenities at random, for example), you can be punished. Why? Because the government's compelling interest in maintaining more or less orderly public schools outweighs the constitutionally-protected expressive element of bellowing obscenities at random. By contrast, the government certainly has an interest in having a loyal citizenry, but the government is not allowed to censor anti-government blogs or news sites: the constitutional protection of such speech outweighs the government's interests to the contrary.

If Foley, the county lawyer charged with defending this blot on Nevada law, believes a word of what he's saying, then I have some advice for him: get your paralegals together and talk it over. Just bounce some ideas off each other. If I were in the room, I might say something like, "hey, boss, does "paperwork and so forth" really outweigh the clear constitutional proscription of religious tests? Does the state of Nevada's interest in preventing Elvis impersonators from performing weddings (but allowing Scientologist stooges, the Westboro Baptist Church, and the Moonies to do so) really control over the Constitution itself?" If he thinks so, he needs to find a better way to say it than he did- I don't think that anything you can nonchalantly describe as "and so forth" is worth much against the clear rule of the controlling document of all American law.