In Arkansas, can a justice of the peace who is willing to perform some civil marriages refuse to officiate same-sex weddings on religious grounds?

Plain-English summary

Senator Bruce Maloch sent the Attorney General eight questions in the weeks after the U.S. Supreme Court legalized same-sex marriage nationwide. The questions, on their face, asked whether a justice of the peace (or county judge) who chooses to solemnize marriages under Ark. Code Ann. § 9-11-213 must adopt an "all or nothing" approach, or whether the official could pick and choose. The same questions were repeated for former JPs and judges who retain marriage authority, and for JPs who are also ordained ministers registered under § 9-11-214.

The AG read the real question as whether JPs with religious objections to same-sex marriage could face civil liability if they refused to solemnize one. The opinion declined to predict outcomes and instead laid out the legal framework an Arkansas court would have to apply.

That framework was Arkansas's brand-new Religious Freedom Restoration Act, Act 975 of 2015 (ARFRA), which by its own terms had to be interpreted consistently with the federal RFRA and federal RFRA case law. The AG walked through the five-step ARFRA analysis: whether the act applies in private-party suits, who counts as a "person," what activities count as religious exercise, what the claimant must show to prove a "substantial burden," and what the government must show to overcome that burden. On most of those steps, federal circuits were split, and the AG predicted how an Arkansas court would likely resolve each split.

For JPs acting as civil officials, the opinion gave a guarded answer. Whether a JP could decline on religious grounds depended in part on which "substantial burden" test an Arkansas court adopted. Under the compulsion test used by the Fourth, Ninth, and Eleventh Circuits, the JP probably could not show a substantial burden, because JPs are not required to solemnize marriages at all and could simply opt out entirely. Under the religiously-motivated test used by the Seventh, Eighth, and Tenth Circuits, the JP would have a better shot, though the outcome would turn on facts. If a JP did clear the substantial-burden threshold, the AG predicted a court would likely find that compelling the JP to officiate was not the least restrictive means of giving same-sex couples access to civil officials, because other authorized officiants were available.

For a JP or former JP who is also a registered minister and acts in that ministerial capacity, the AG was definitive: the official can decline to solemnize same-sex marriages. Forcing a minister to perform a religious ceremony would obviously substantially burden religious exercise. The capacity in which the official solemnizes any given marriage would usually be clear from the context, and § 9-11-214(b) requires a cleric to record on the marriage license the county where the minister's registration is filed, which would document the capacity.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Who can solemnize a marriage in Arkansas?

Ark. Code Ann. § 9-11-213(a) listed the Governor; any former Justice of the Supreme Court; judges of courts of record, including any former judge of a court of record who served at least four years; any justice of the peace, including former JPs who served at least two terms since Amendment 55; any regularly ordained minister or priest of any religious sect or denomination; the mayor of any city or town; any official appointed for the purpose by the quorum court of the county where the marriage is to be solemnized; and elected district court judges and certain former municipal or district court judges.

Is a JP required to solemnize marriages?

No. The opinion stressed that solemnizing marriages is not an inherent part of a JP's duties; the official is authorized but not required to perform the function. That distinguished a JP from a county clerk, who has a nondiscretionary statutory duty to issue marriage licenses.

What did the Arkansas RFRA do?

ARFRA, enacted as Act 975 of 2015, mirrored the federal RFRA. It barred a state or local government from substantially burdening a person's exercise of religion unless the burden was in furtherance of a compelling government interest and was the least restrictive means of furthering that interest. By statute, ARFRA was to be interpreted consistently with federal RFRA, federal case law, and federal jurisprudence.

Why did the opinion say the answer would turn on circuit splits?

Because at the time the opinion was written there were no Arkansas appellate decisions or AG opinions interpreting ARFRA, and ARFRA borrowed federal RFRA's text wholesale. The federal circuits disagreed about whether the federal RFRA can be used in suits between private parties (the Sixth and Seventh Circuits said no, the Second, Eighth, and D.C. Circuits said yes) and about what counts as a "substantial burden" (the compulsion test in the Fourth, Ninth, and Eleventh Circuits, versus the religiously-motivated test in the Seventh, Eighth, and Tenth). An Arkansas court would have to pick a side on each split, and the opinion predicted the court would lean toward the Eighth Circuit positions.

What is the difference between the compulsion test and the religiously-motivated test?

Under the compulsion test, a claimant shows a substantial burden only if government action either compels conduct prohibited by the claimant's religion or prevents conduct mandated by it. Under the religiously-motivated test, the claimant only has to show that the government action compels the claimant to refrain from religiously-motivated conduct. The first is harder for the claimant; the second is easier.

What did the opinion say about JPs who are also ministers?

When the JP/minister was solemnizing the marriage in his or her capacity as a minister, the opinion said a court would hold that the official could decline to solemnize same-sex marriages. To rule otherwise would mean a minister could not perform religious duties because of current or former public service, which the opinion described as a gross infringement on the minister's religious exercise. The opinion read § 9-11-214(b)'s requirement that a cleric record the county of registration on the license as a marker of which capacity was in play.

Did this opinion bind any court, JP, couple, or county clerk?

No. AG opinions are persuasive authority in Arkansas, not binding. The opinion expressly framed itself as a prediction of how a court would likely proceed.

Background and statutory framework

The opinion's framework rested on three legal layers. First, Arkansas's marriage-solemnization statute, Ark. Code Ann. § 9-11-213, listed the officials authorized to solemnize and made the function discretionary for JPs. Section 9-11-214 separately governed registration and certification for ministers, and § 20-18-501(c) imposed general license-return obligations on anyone who performs a marriage.

Second, ARFRA (Act 975 of 2015, to be codified at Ark. Code Ann. § 16-123-401 et seq.) set the substantive religious-liberty standard. The opinion cited the substantive prohibition on substantial government burdens on religious exercise as later codified at Ark. Code Ann. § 16-123-404(a), and the rule that ARFRA be interpreted consistently with the federal RFRA as later codified at Ark. Code Ann. § 16-123-402(2).

Third, the federal RFRA case law supplied the interpretive framework. Sherbert v. Verner set the original Free Exercise strict-scrutiny standard. Employment Division v. Smith displaced it for neutral, generally applicable laws. Congress enacted RFRA in response, but City of Boerne v. Flores held that Congress could not apply RFRA to the states; Cutter v. Wilkinson later held RFRA constitutional as applied to the federal government. Burwell v. Hobby Lobby addressed whether for-profit corporations counted as "persons" under RFRA. Circuit-court cases on private-party application and the substantial-burden test (cited in the cases-cited list) supplied the rest of the framework.

The opinion also noted the federal § 1983 cause of action as a potential alternative path for a private suit against a JP in federal court, where the analysis might differ.

Citations

• Ark. Code Ann. § 9-11-213(a) (Repl. 2009)
• Ark. Code Ann. § 9-11-214(b)
• Ark. Code Ann. § 20-18-501(c)
• Acts 2015, No. 975, § 1 (to be codified at Ark. Code Ann. § 16-123-402(2), § 16-123-404(a))
• 42 U.S.C. § 1983
• Ark. Const. amend. 55
• Sherbert v. Verner, 374 U.S. 398 (1963)
• Wisconsin v. Yoder, 406 U.S. 205 (1971)
• United States v. Lee, 455 U.S. 252 (1982)
• Employment Division v. Smith, 494 U.S. 872 (1990)
• Church of the Lukumi Babalu Aye v. Hialeah, 508 U.S. 520 (1993)
• Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439 (1988)
• City of Boerne v. Flores, 521 U.S. 507 (1997)
• Cutter v. Wilkinson, 544 U.S. 709 (2005)
• Burwell v. Hobby Lobby, 134 S. Ct. 2751 (2014)
• General Conference Corp. of Seventh Day Adventists v. McGill, 617 F.3d 402 (6th Cir. 2010)
• Tamie v. Catholic Diocese of Peoria, 442 F.3d 1036 (7th Cir. 2006)
• Hankins v. Lyght, 441 F.3d 96 (2d Cir. 2006)
• In re Young v. Crystal Evangelical Free Church, 141 F.3d 854 (8th Cir. 1998)
• EEOC v. Catholic Univ. of America, 83 F.3d 455 (D.C. Cir. 1996)
• Worldwide Church of God v. Phila. Church of God, 227 F.3d 1110 (9th Cir. 2000)
• Goodall v. Stafford County Sch. Bd., 60 F.3d 168 (4th Cir. 1995)
• Bryant v. Gomez, 46 F.3d 948 (9th Cir. 1995)
• Cheffer v. Reno, 55 F.3d 1517 (11th Cir. 1995)
• Mack v. O'Leary, 80 F.3d 1175 (7th Cir. 1996)
• Brown-El v. Harris, 26 F.3d 68 (8th Cir. 1994)
• Werner v. McCotter, 49 F.3d 1476 (10th Cir. 1995)
• Abdur-Rahman v. Michigan Dept. of Corrections, 65 F.3d 489 (6th Cir. 1995)
• Tex. Atty. Gen. Op. No. KP-0025 (June 28, 2015)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2015-075
August 5, 2015

The Honorable Bruce Maloch
State Senator
650 Columbia Road 258
Magnolia, Arkansas 71753

Dear Senator Maloch,

STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE

I am writing in response to your request for an opinion regarding the authority of justices of the peace to solemnize weddings. You ask eight questions:

1. If a current justice of the peace ("JP") or county judge ("Judge") chooses to solemnize marriages pursuant to Ark. Code Ann. § 9-11-213, must the official adopt an "all or nothing" policy — marrying all couples who request the service?
2. If a current JP or Judge chooses to solemnize marriages pursuant to Ark. Code Ann. § 9-11-213, may the official choose to solemnize some marriages, while declining to solemnize others?
3. 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?
4. If a former JP or Judge chooses to solemnize marriages pursuant to Ark. Code Ann. § 9-11-213, must the official adopt an "all or nothing" policy — marrying all couples who request the service?
5. If a former JP or Judge chooses to solemnize marriages pursuant to Ark. Code Ann. § 9-11-213, may the official choose to solemnize some marriages while declining to solemnize others?
6. 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?
7. 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 Ark. Code Ann. § 9-11-214, may the official choose, as a minister of the gospel, to solemnize some marriages, while declining to solemnize others?
8. If a former JP or Judge permitted to perform marriages under Ark. Code Ann. § 9-11-213 is also a minister of the gospel and properly registered to solemnize marriages as a minister of the gospel pursuant to Ark. Code Ann. § 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.

DISCUSSION

Justices of the peace (JPs) are authorized but not required to solemnize civil marriages. Taken on their face, your questions ask whether JPs who choose to solemnize civil marriages must officiate at the weddings of anyone who asks. The answer to that question is clearly "no." There could be scheduling conflicts that make it impossible for a JP to officiate at the weddings of two different couples. It could also be that the couple requests a time for the ceremony that is incompatible with the JPs other duties. But given the context for your questions — especially because your last two questions ask about ministers — I take your questions to be asking whether JPs who choose to solemnize marriages may refuse to solemnize the marriages of same-sex couples. Taken in the abstract, this question is difficult to answer with any degree of certainty. Accordingly, in what follows, I will address whether JPs can be held liable in a civil suit (for damages or an injunction). The answer to that question is more complex, requiring me to explain a general legal framework within which a court would likely reach the answer to that question.

Before turning to your specific questions, I will explain the general law that, in my opinion, a court would use to resolve your questions. I will discuss the role of JPs in Arkansas marriage laws and how that role differs from clerks who issue marriage licenses. I will then discuss state laws that a court faced with your question would address, especially Act 975 of 2015 — Arkansas's Religious Freedom Restoration Act (ARFRA). I will explain the framework that a court must use to interpret the ARFRA. With this general law in place, I will then turn to address your specific questions.

I. Justices of the peace and Arkansas's marriage laws

Arkansas law establishes two requirements for a marriage entered into in this state to be valid. First, the marriage must be solemnized. Second, the solemnization must be conducted by one of the persons authorized to do so in the following statute:

For the purpose of being registered and perpetuating the evidence thereof, marriage shall be solemnized only by the following persons:
(1) The Governor;
(2) Any former justice of the Supreme Court;
(3) Any judges of the courts of record within this state, including any former judge of a court of record who served at least four (4) years or more;
(4) Any justice of the peace, including any former justice of the peace who served at least two (2) terms since the passage of Arkansas Constitution, Amendment 55;
(5) Any regularly ordained minister or priest of any religious sect or denomination;
(6) The mayor of any city or town;
(7) Any official appointed for that purpose by the quorum court of the county where the marriage is to be solemnized; or
(8) Any elected district court judge and any former municipal or district court judge who served at least four (4) years.

JPs, like others on the list, are authorized but not required to solemnize marriages. This means that JPs differ from those who issue marriage licenses (i.e. county clerks) in two ways. First, unlike those public officials whose statutory duty is to issue marriage licenses, solemnizing marriages is not an inherent or official part of a JP's duties. Second, unlike the nondiscretionary task of issuing marriage licenses, JPs have discretion about whether they will solemnize marriages at all.

As I understand your questions, you are asking whether JPs who do solemnize marriages can be liable for refusing to solemnize same-sex marriages. There is no general statute that authorizes JPs (or others) to refuse to solemnize same-sex marriages. Thus, whether JPs can be liable for refusing to solemnize same-sex marriages likely depends on those to whom the ARFRA applies. Consequently, I will explain some of the background that led to the ARFRA as helpful context before turning to how the ARFRA is likely to be interpreted.

II. State RFRAs

a. RFRAs generally

[The opinion summarizes Sherbert v. Verner, the Sherbert strict-scrutiny standard, Employment Division v. Smith's abandonment of that standard, Congress's enactment of the federal RFRA in response, City of Boerne v. Flores's holding that Congress could not apply the federal RFRA to the states, and the resulting wave of state RFRAs (at least 17 by 2015), culminating in Arkansas's Act 975 of 2015.]

b. Interpreting Arkansas's RFRA

There are no Arkansas appellate cases or Attorney General Opinions interpreting the ARFRA. But the ARFRA requires that an Arkansas court interpret it in a way that is "consistent with the [FRFRA], federal case law, and federal jurisprudence." The U.S. Supreme Court and the various federal circuit courts of appeal have established a clear framework within which FRFRA cases are adjudicated. But there are circuit splits on several key questions. An Arkansas court faced with your questions would certainly apply this FRFRA framework. But it is less clear how a court would navigate the several important circuit splits.

Under the clear FRFRA framework, an Arkansas court faced with your questions would have to address five primary questions: (1) Does the ARFRA apply in suits between private parties? (2) What persons or entities are covered by the ARFRA? (3) What is the range of activities covered by the ARFRA? (4) What is the burden necessary to trigger ARFRA's protection? (5) If the ARFRA claimant meets that threshold burden, what must the other party show to justify the burden?

1. Suits between private parties. The threshold question any Arkansas court would have to address is whether ARFRA applies in suits between private parties. While the federal circuits are split on whether the FRFRA can be used in suits between private parties, the majority hold that the FRFRA can be used in suits between private parties. In my opinion, an Arkansas court would probably also conclude that the ARFRA can be used in suits between private parties.

2. Persons covered by ARFRA. The next question is whether JPs are persons who are covered by the ARFRA. The ARFRA states that "a government shall not substantially burden a person's exercise of religion …." The term "person" is not separately defined, but it would certainly encompass individuals.

3. Activities covered by ARFRA. The next question is whether the ARFRA provides any protection to the JP in such a suit specifically for refusing to solemnize a same-sex marriage. The ARFRA protects "a person's exercise of religion." So a court would have to find that a given JP who objected to solemnizing same-sex marriages did so because he or she held a sincere religious belief that he or she was prohibited from solemnizing same-sex marriages. This is essentially a factual inquiry.

4. Burden on the ARFRA claimant. The ARFRA, like its federal counterpart, requires that an ARFRA claimant bear the initial burden of proof to show that the state law "substantially burdens" the claimant's religious exercise. The federal circuits are split into two groups regarding what qualifies as a "substantial burden":

• The compulsion test (Fourth, Ninth, and Eleventh Circuits). A claimant can show substantial burden only if the government action infringes on a practice mandated by the claimant's religion or requires conduct prohibited by it.

• The religiously-motivated test (Seventh, Eighth, and Tenth Circuits). A claimant can show substantial burden if the governmental action compels the claimant to refrain from religiously-motivated conduct.

In my opinion, an Arkansas court would probably follow the Eighth Circuit in holding that ARFRA requires the religiously-motivated test.

5. Nature of protection ARFRA provides. If the ARFRA claimant can meet the threshold burden of showing that the law "substantially burdens" the claimant's religious exercise, then the opposing party must show that the law is "[i]n furtherance of a compelling government interest" and that the burden on the claimant is the "least restrictive means of furthering that compelling governmental interest."

III. Application to the Questions

Questions 1-3

Your first two questions ask whether current JPs who solemnize marriages would be liable for refusing to solemnize a same-sex marriage. Given the framework explained above, I believe an Arkansas court would hold that JPs with sincerely-held religious-objection could assert (as a claim or defense to a claim) the ARFRA in a private-party suit. 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.

In my opinion, the question of substantial burden is the most difficult to answer in this context. Whether the JP would be able to establish the "substantial burden" depends on which of the two tests (discussed above) an Arkansas court adopted. 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. The fundamental reason for this is that JPs are not required to solemnize marriages. They are not receiving a public benefit that they must choose to either forgo or violate their religious beliefs. So the JP would probably not be able to argue that he or she was being compelled to violate his or her religious beliefs. The JP could simply not solemnize marriages at all. 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.

If a JP were able to meet the "substantial burden" standard, then the opposing party would have to prove that requiring the JP to solemnize same-sex marriages served a compelling state interest and was the least restrictive means to further that interest. In my opinion, a court would probably hold that forcing JPs to solemnize weddings when other authorized civil officials are available and have no objection is not the least restrictive means to ensure that same-sex couples have adequate access to civil officials to solemnize marriages.

Your third question asks whether, if current JPs must be open to solemnizing the marriages of all who ask, an objecting JP can simply refuse to solemnize any marriages except those of family members and close friends. This question presents a scenario that is substantially the same as Questions 1 and 2. Therefore, in my opinion, a court would probably answer this question in the same way it would answer those two questions.

Questions 4-6

Your fourth and fifth questions ask whether former JPs who solemnize weddings would be liable for refusing to solemnize same-sex weddings. In my opinion, the analysis and resulting answer to Questions 4 and 5 are essentially the same as those I offered for Questions 1 and 2, above. While the fact that the JP is a former public official may slightly affect the ways the "substantial burden" and least-restrictive-alternative tests are applied, I do not think that the analysis will be so altered as to alter a court's conclusions.

Your sixth question asks whether, if former JPs must be open to solemnizing the marriages of all who ask, an objecting JP can simply refuse to solemnize any marriages except those of family members and close friends. This question presents a scenario that is substantially the same as Questions 4 and 5. Therefore, in my opinion, a court would probably answer this question in the same way it would answer those two questions.

Questions 7-8

Your final two questions ask whether a JP (whether current or former) who is also a minister must choose to either not solemnize any marriages at all or solemnize the marriages of anyone who asks. The answer to this question depends on the capacity in which the JP/minister is solemnizing the marriage. If the JP is solemnizing the marriage in his or her capacity as a civil official, then the answer is the same as the responses to Questions 1, 2, 4, and 5. But if 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 minister's religious exercise that would easily satisfy the substantial-burden test.

Further, the capacity in which the JP/minister solemnizes any particular marriage would be clear for one of two reasons. First, as a practical matter, the context in which the JP/minister is asked to solemnize the marriage will probably show the capacity in which the JP/minister solemnizes the marriage. Second, this capacity will also be clear because a separate statute — Ark. Code Ann. § 9-11-214(b) — requires a cleric who solemnizes a marriage to record, on the marriage license, the county in which the cleric's registration has been filed. In contrast, JPs, like all others authorized to solemnize marriages are subject to the less detailed requirement of Ark. Code Ann. § 20-18-501(c), requiring that "[e]very person who performs a marriage shall certify the fact of the marriage and return the record [i.e. the marriage license] to the official who issued the license within fifteen (15) days after the ceremony."

Assistant Attorney General Ryan Owsley prepared this opinion, which I hereby approve.

Sincerely,

Leslie Rutledge
Attorney General
LR/RO:cyh