Who counts as an 'other spiritual leader' for solemnizing a Tennessee marriage, and does the founder of a religious organization qualify?

Plain-English summary

Tenn. Code Ann. § 36-3-301(a) lists the persons who may solemnize Tennessee marriages. The list includes a long inventory of public officials (legislators, judges, county officials, mayors, county clerks) and "all regular ministers, preachers, pastors, priests, rabbis and other spiritual leaders of every religious belief, more than eighteen (18) years of age, having the care of souls." Subsection (a)(2) specifies that the spiritual leader must be "ordained or otherwise designated in conformity with the customs of a church, temple or other religious group or organization" and that "such customs must provide for such ordination or designation by a considered, deliberate, and responsible act."

The AG was asked two questions. First, can an elder in a Church of Christ solemnize a marriage? The AG answered that Church of Christ congregations are autonomous, with elders selected by the congregation according to scriptural qualifications. Whether an elder in a particular congregation can solemnize marriages depends on that congregation's custom and practice, since marriage-officiating is typically a minister's function in Churches of Christ. Without a showing that the congregation's custom and practice authorizes its elders to perform weddings, the elder does not have that authority under § 36-3-301.

Second, can a person who helped found a religious organization (and who helped design the organization's ordination criteria, and was then ordained under those criteria) solemnize marriages? The AG answered yes, so long as the leader's ordination or designation was by a considered, deliberate, and responsible act and no improper methods of selection are proven. The First Amendment's Free Exercise Clause protects a religious organization's authority to select its own clergy, and Tennessee courts must defer to a religion's internal rules about who its spiritual leaders are.

Currency note

This opinion was issued in 2014. 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

Q: What makes someone a "spiritual leader having the care of souls" under the statute?
A: The Tennessee Court of Appeals in Aghili v. Saadatnejadi, 958 S.W.2d 784 (Tenn. Ct. App. 1997), held that courts look to the tenets of the particular religion to decide whether a person is a regular minister or other spiritual leader. The case considered evidence that Islam had consistently rejected the distinction between clergy and laity and concluded that a non-imam Islamic religious leader could administer Islamic blessings.

Q: Why aren't Church of Christ elders automatically authorized?
A: Because Church of Christ congregations are autonomous, and marriage-officiating is typically a minister's function rather than an elder's. Some congregations expressly task ministers (or a "family minister") with weddings, while others allow elders to perform them on request. The AG's bottom line is that the answer depends on the particular congregation's documented custom.

Q: What is "a considered, deliberate, and responsible act"?
A: The statute's language requires that the religion's ordination or designation process not be casual or unconsidered. Tenn. Att'y Gen. Op. 04-157 (Oct. 25, 2004) concluded that a police chaplain not ordained or designated in conformity with a religion's customs could not perform marriages. Tenn. Att'y Gen. Op. 07-122 (Aug. 16, 2007) concluded an unordained Jewish cantor could not, absent a showing that Judaism recognizes unordained cantors as qualified to perform marriages.

Q: Why does the First Amendment matter?
A: Because deciding who can be a religious organization's clergy is a matter of internal religious governance. Kedroff v. Saint Nicholas Cathedral, 344 U.S. 94 (1952), recognized that the "freedom to select the clergy" is part of free exercise. Hosanna-Tabor Evangelical Lutheran Church & School v. E.E.O.C., 132 S. Ct. 694 (2012), recognized a "ministerial exception" that lets religious groups control who works as a religious teacher. Watson v. Jones, 80 U.S. 679 (1872), and Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976), bar civil courts from second-guessing internal religious decisions about discipline, faith, or rule.

Q: What does "no improper methods of choosing a religious leader" mean?
A: The phrase comes from Kedroff. The Free Exercise Clause protects religious selection of clergy where no improper methods are shown. The opinion does not enumerate what improper methods would be, but the implication is that the selection process must be the religion's own, not a sham.

Q: Does the analysis change if the religion is new or small?
A: No. The protection is for "every religious belief." The size, age, or popularity of the religion is not the test. The test is whether the religion has a custom for designating its spiritual leaders that involves a considered, deliberate, and responsible act.

Background and statutory framework

Tennessee's marriage-solemnization statute draws a sharp distinction between two routes to authority: a list of public officials (categorical authority by office) and "ministers, preachers, pastors, priests, rabbis and other spiritual leaders of every religious belief" (authority by status within a religion). The "other spiritual leaders" route is intentionally open-ended to cover the wide range of religious traditions practiced in Tennessee, while subsection (a)(2) imposes a procedural floor (ordination or designation by considered, deliberate, and responsible act).

The First Amendment overlay gives the statute its current shape. Civil courts cannot decide who is a religion's clergy by reference to civil-law criteria, because doing so would entangle the state in internal religious governance. Tennessee courts therefore look to the religion's own practices and customs, as Aghili did with Islam and earlier AG opinions did with Judaism. The Church of Christ wrinkle in Question 1 arises because Church of Christ congregations are autonomous, so there is no single denominational rule and a congregation-by-congregation analysis is required.

The Question 2 fact pattern (a person who founded a religious organization and helped design its ordination criteria) tests whether self-ordination undermines the considered-deliberate-responsible-act requirement. The AG's answer is that the statute and the Free Exercise Clause focus on the legitimacy of the religion's process, not the founder's involvement in shaping that process. If the process is itself considered, deliberate, and responsible, the founder's later ordination under it qualifies.

Citations and references

Constitutional and statutory provisions:
- U.S. Const. amend. I (Free Exercise Clause)
- Tenn. Code Ann. § 36-3-301 (persons authorized to solemnize marriage)

Cases:
- Aghili v. Saadatnejadi, 958 S.W.2d 784 (Tenn. Ct. App. 1997) (Tennessee Court of Appeals; religion's own tenets govern)
- Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in North America, 344 U.S. 94 (1952) (U.S. Supreme Court; freedom to select clergy)
- Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 132 S. Ct. 694 (2012) (U.S. Supreme Court; ministerial exception)
- Watson v. Jones, 80 U.S. 679 (1872) (U.S. Supreme Court; deference to highest church judicatories)
- Serbian Eastern Orthodox Diocese for United States and Canada v. Milivojevich, 426 U.S. 696 (1976) (U.S. Supreme Court; hierarchical religious organizations)

Earlier AG opinions:
- Tenn. Att'y Gen. Op. 04-157 (Oct. 25, 2004) (police chaplain)
- Tenn. Att'y Gen. Op. 07-122 (Aug. 16, 2007) (Jewish cantor)

Subject

Opinion No. 14-90, Authority of Certain Religious Leaders to Perform Weddings, September 30, 2014

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2014/op14-090.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
September 30, 2014
Opinion No. 14-90
Authority of Certain Religious Leaders to Perform Weddings

QUESTIONS

1. May an elder in a Church of Christ solemnize the rite of matrimony?

2. Is an individual who helps create a religious organization, as well as the official criteria for ordination within that religious organization, and who undergoes the process to become ordained authorized to solemnize the rite of matrimony?

OPINIONS

1. As each congregation of a Church of Christ is autonomous, whether its elders are authorized to solemnize the rite of matrimony under Tenn. Code Ann. § 36-3-301 is dependent upon the practice and tradition of each particular congregation.

2. So long as no improper methods of choosing a religious leader are proven and the leader's designation is by a considered, deliberate, and responsible act, that spiritual leader would be authorized to solemnize the rite of matrimony regardless of whether he or she participated in the creation of the religious organization or the criteria for ordination.

ANALYSIS

1. The persons eligible to solemnize marriages are set forth in Tenn. Code Ann. § 36-3-301, which specifies in relevant part that:

(a)(1) All regular ministers, preachers, pastors, priests, rabbis and other spiritual leaders of every religious belief, more than eighteen (18) years of age, having the care of souls, and all members of the county legislative bodies, county mayors, judges, chancellors, former chancellors and former judges of this state, former county executives or county mayors of this state, former members of quarterly county courts or county commissions, the governor, the speaker of the senate and former speakers of the senate, the speaker of the house of representatives and former speakers of the house of representatives, the county clerk of each county and the mayor of any municipality in the state may solemnize the rite of matrimony. . . .

(2) In order to solemnize the rite of matrimony, any such minister, preacher, pastor, priest, rabbi or other spiritual leader must be ordained or otherwise designated in conformity with the customs of a church, temple or other religious group or organization; and such customs must provide for such ordination or designation by a considered, deliberate, and responsible act.

(emphasis added).

Courts look to the tenets of the particular religion to determine whether a particular person is a regular minister or other spiritual leader having the care of souls under Tenn. Code Ann. § 36-3-301(a). Aghili v. Saadatnejadi, 958 S.W.2d 784, 787 (Tenn. Ct. App. 1997). See, e.g., id. at 787-88 (considering evidence that Islam had consistently rejected the distinction between clergy and laity to determine that challenged Islam religious leader, who was not an imam, had authority to administer Islamic blessings). In Tenn. Att'y Gen. Op. 04-157 (Oct. 25, 2004), this Office opined that a police chaplain would not have authority to perform a marriage under the "other spiritual leaders" language of the statute if such officer were not ordained or otherwise designated in conformity with the customs and practices of any religious denomination and authorized to perform religious functions. Further, in Tenn. Att'y Gen. Op. 07-122 (Aug. 16, 2007), this Office observed that in the Jewish religion, a cantor may be a layperson or may be ordained. Accordingly, the Office opined that an unordained Jewish cantor would not have authority to perform a marriage under the statute in the absence of a showing "that Judaism recognizes that a cantor who is not ordained is qualified to perform marriage ceremonies." Id. at 2.

Churches of Christ are autonomous Christian congregations, who associate with one another based upon common faith and beliefs but have no outside centralized oversight. Typically a congregation of a Church of Christ is governed by its elders, who are spiritual leaders selected by the congregation on the basis of qualifications set forth in the scriptures. See generally Richard T. Hughes, Reviving the Ancient Faith: The Story of Churches of Christ in America, at 1-8, 18 (1996). Accordingly, whether an elder in a particular congregation of a Church of Christ may perform weddings, which is a function typically performed by a minister, would depend upon the custom and practice of that particular congregation. Absent a showing that the congregation's custom and practice authorizes elders to solemnize the rite of marriage, those elders would not be authorized to do so under Tenn. Code Ann. § 36-3-301.

2. The United States Supreme Court has recognized that the "[f]reedom to select the clergy [or other religious leaders], where no improper methods of choice are proven," is "part of the free exercise of religion" protected against government interference by the First Amendment's Free Exercise Clause. Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in North America, 344 U.S. 94, 116 (1952) (emphasis added) (stating that the power of the Supreme Church Authority of the Russian Orthodox Church to appoint the ruling hierarch of the archdiocese of North America is "strictly a matter of ecclesiastical government"); see also Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 132 S. Ct. 694, 702-10 (2012) (reviewing the controversy between church and state over control of religious offices from the Magna Carta to the First Amendment's Free Exercise Clause and holding that a religious group may control who works as a "called teacher" at its school under the "ministerial exception" to employment laws).

The Court explained in Watson v. Jones, 80 U.S. 679 (1872), that "whenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of [the] church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them." 80 U.S. at 727. The Court later noted that its opinion in Watson "radiates . . . a spirit of freedom for religious organizations, an independence from secular control or manipulation, in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine." Kedroff, 344 U.S. at 116. The Court reaffirmed these principles in Serbian Eastern Orthodox Diocese for United States and Canada v. Milivojevich, 426 U.S. 696 (1976), again finding that the First Amendment "permit[s] hierarchical religious organizations to establish their own rules and regulation for internal discipline and government," in a case involving a dispute over control of the American-Canadian Diocese of the Serbian Orthodox Church, including its property and assets. 426 U.S. at 714.

Therefore, so long as no improper methods of choosing a religious leader are proven and the leader's ordination or designation to perform marriages is by a considered, deliberate, and responsible act, that spiritual leader would be authorized to solemnize the rite of matrimony under Tenn. Code Ann. § 36-3-301(a)(1) and (2), regardless of whether he or she participated in the creation of the religious organization or the criteria for ordination.

ROBERT E. COOPER, JR.
Attorney General and Reporter

JOSEPH F. WHALEN
Acting Solicitor General

STEVEN A. HART
Special Counsel

Requested by:
The Honorable John DeBerry
State Representative
26 Legislative Plaza
Nashville, Tennessee 37243

The Honorable Jon Lundberg
State Representative
20 Legislative Plaza
Nashville, Tennessee 37243