January
10, 2007
Joseph
Komosinski
State Registrar of Vital Statistics
Health and Agriculture Building
P.O. Box 360
Trenton, New Jersey 08625-0360
Formal
Opinion No. 1-2007
Re: Whether Public Officials and Religious
Figures May Decline to Exercise their Authority
to Solemnize Civil Unions
Dear
Mr. Komosinski:
On December 21, 2006, I provided advice
to you regarding whether public officials
may refuse to solemnize civil unions, once
the statute authorizing civil unions becomes
effective. A related question has arisen
regarding whether religious figures, that
is priests, ministers, rabbis, imams, and
other religious officiants (hereinafter
“members of the clergy” or “religious
figures”) may refuse to solemnize
civil unions based on sincerely held religious
beliefs. The legal analysis and conclusions
regarding these two categories of individuals
authorized to solemnize marriages and civil
unions differs. I, therefore, wish to provide
you with comprehensive advice on the questions
noted above, which includes a reiteration
of my December 21, 2006 advice.
You were previously advised that although
public officials can decline to exercise
their authority to solemnize marriages and
civil unions entirely, if a public official
elects to be available generally for the
purpose of solemnizing marriages, that official
must also be available generally to solemnize
civil unions. Any attempt to distinguish
between marriages and civil unions in the
exercise of the statutory authority to solemnize
would violate the Law Against Discrimination,
N.J.S.A. 10:5-1, et seq.,
(“LAD”). Should the solemnization
power be implemented in a discriminatory
way by a public official, the Attorney General
is authorized to seek judicial relief to
ensure compliance with the LAD.
The LAD, however, does not apply to the
administration of religious rites by members
of the clergy. As a result, there is no
statutory bar to a member of the clergy
declining to solemnize civil unions in accordance
with sincerely held religious beliefs, even
though that religious figure regularly solemnizes
marriages.
L. 2006, c. 103, the law authorizing
civil unions in this State, will become
effective on February 19, 2007. The law
amends existing statutes to authorize various
public officials and religious figures to
solemnize marriages and civil unions.
Once the law becomes effective, N.J.S.A.
37:1-13 will provide:
Each judge of the United States Court
of Appeals for the Third Circuit, each
judge of a federal district court, United
States magistrate, judge of a municipal
court, judge of the Superior Court,
judge of a tax court, retired judge
of the Superior Court or Tax Court,
or judge of the Superior Court or Tax
Court, the former County Court, the
former County Juvenile and Domestic
Relations Court, or the former County
District Court who has resigned in good
standing, surrogate of any county, county
clerk and any mayor or the deputy mayor
when authorized by the mayor, or chairman
of any township committee or village
president of this State, and every minister
of every religion, are hereby authorized
to solemnize marriage or civil union
between such persons as may lawfully
enter into the matrimonial relation
or civil union; and every religious
society, institution or organization
in this State may join together in marriage
or civil union such persons according
to the rules and customs of the society,
institution or organization.
Public Officials
Nothing in New Jersey law compels a public
official to exercise his or her authority
to solemnize marriages and civil unions.
It is our understanding that many public
officials authorized to solemnize marriages
do not do so. Other officials, however,
regularly make themselves available to solemnize
marriages to members of the public wishing
to avail themselves of this service.
Where a public official elects to be available
generally to solemnize marriages, he or
she must also be available generally to
solemnize civil unions. The Law Against
Discrimination provides that “[a]ll
persons shall have the opportunity . . .
to obtain all the accommodations, advantages,
facilities, and privileges of any place
of public accommodation . . . without discrimination
because of . . . sexual orientation . .
. [or] sex . . . .” N.J.S.A.
10:5-4. “This opportunity is recognized
as and declared to be a civil right.”
Ibid. The regular availability of
a public official to solemnize a marriage
or civil union is an accommodation, advantage,
or privilege of a place of public accommodation.
The LAD is not limited to a literal interpretation
of the phrase “place” of public
accommodation, but also applies to the generally
available services of government entities
and public officials. “To have the
LAD’s reach turn on the definition
of ‘place’ is irrational because
‘places do not discriminate; people
who own and operate places do.’”
Dale v. Boy Scouts of Am., 308 N.J.
Super. 516, 533 (App. Div. 1998)(quoting
Welsh v. Boy Scouts of Am., 993 F.2d
1267, 1282 (7th Cir.)(Cummings, C.J., dissenting),
cert. denied, 510 U.S. 1012
(1993)), aff’d, 160 N.J.
562 (1999), rev’d on other grounds,
530 U.S. 640 (2000). Courts have
interpreted “place of public accommodation”
broadly to include public entities and government
officials. Notably, in 2004, the Appellate
Division held that a “Township police
department -- both the building and the
individual officers -- is a place of public
accommodation.” Ptaszynski v. Uwaneme,
371 N.J. Super. 333, 347 (App. Div.),
certif. denied, 182 N.J. 147
(2004). The court noted that “[a]s
a public entity, by its very nature a police
force is a place of public accommodation.”
Ibid. To hold otherwise, the court
reasoned, would lead to the incongruous
result of having a myriad of private entities
and employers subject to the LAD’s
strictures while government law enforcement
agencies and police officers are free to
engage in discrimination. Id. at
347-348.
The rationale articulated in Ptaszynski
follows the Supreme Court’s observation
in Dale, supra, where the
Court, in its analysis of whether the Boy
Scouts of America constitutes a place of
public accommodation under the LAD, noted
that “New Jersey governmental entities
are, of course, bound by the LAD.”
160 N.J. at 593, n.7. The Ptaszynski
court added at the conclusion of its opinion:
“We are satisfied that not just a
municipal police force, but any State governmental
agency is a place of public accommodation
for purposes of inclusion under the umbrella
of the LAD . . . .” 371 N.J. Super.
348.
These judicial statements leave no doubt
that State and municipal governments and
the services offered by public officials
are places of public accommodation under
the LAD. With this understanding of the
LAD, where a public official elects to be
available generally to solemnize marriages,
that official must be available on the same
terms to solemnize civil unions. Drawing
a distinction between marriages and civil
unions in the exercise of official powers
would constitute discrimination in the provision
of an accommodation, advantage, or privilege
of a place of public accommodation based
on either sexual orientation or sex or both.
Differential treatment of this sort also
may violate the equal protection provisions
of the State Constitution. See Lewis
v. Harris, 188 N.J. 415 (2006)(holding
that equal protection provisions of State
Constitution require committed, same-sex
couples to be afforded all of the rights
and responsibilities of marriage, including
equal access to those rights and responsibilities).
Should a public official implement a practice
of regularly solemnizing marriages, but
not civil unions, the Attorney General could
seek judicial relief. The Attorney General
is authorized to receive, investigate and
act upon complaints of violations of the
LAD. “At any time after the filing
of any complaint the Attorney General may
proceed against any person in a summary
manner in the Superior Court of New Jersey
to compel compliance with any of the provisions
of [the LAD], or to prevent violations or
attempts to violate any such provisions,
or attempts to interfere with or impede
the enforcement of any such provisions or
the exercise or performance of any power
or duty thereunder.” N.J.S.A.
10:5-14.1. The LAD provides for monetary
penalties, as well as remedial and injunctive
relief.
Religious Figures
It has long been the position of the Attorney
General and the courts that religious institutions
are not places of public accommodation under
the LAD with respect to religious worship,
sincerely held religious beliefs, practices
and liturgical norms, even where the acts
of religious institutions are ostensibly
or colorably at odds with any of the categories
of prohibited discrimination in the LAD.
This position was recognized by the Third
Circuit in The Presbytery of the Orthodox
Presbyterian Church v. Florio, 40 F.3d
1454 (1994). In that case, the Director
of the New Jersey Division of Civil Rights
filed with the Court an affidavit averring
that it was the Attorney General’s
position that “the state did not consider
churches places of ‘public accommodations’”
under the LAD and had never sought to apply
the LAD to religious practices. Id.
at 1460-1461.
Five years later, Presiding Judge Skillman
of the Appellate Division concurred with
the Attorney General’s interpretation
of the LAD by holding that
[a]lthough churches, seminaries, and
religious programs are not expressly
excluded from the definition of “place
of public accommodation,” the
Legislature clearly did not intend to
subject such facilities and activities
to the LAD. None of the enumerated examples
of “public accommodations”
set forth in N.J.S.A. 10:5-5(l)
are similar in any respect to a place
of worship or religious training. Furthermore,
a church or other religious institution
does not ordinarily solicit the general
public’s participation, which
is “a principal characteristic
of public accommodations.” Instead,
a religious institution’s solicitation
of participation in its religious activities
is generally limited to persons who
are adherents of the faith or at least
receptive to its beliefs.
[Wazeerud-Din v. The Goodwill Home
and Missions, Inc., 325 N.J.
Super. 3, 10 (App. Div. 1999)(citations
omitted), certif. denied, 163
N.J. 13 (2000).]
Judge
Skillman further noted that “any attempt
to regulate a religious institution’s
policies concerning participation in its
religious activities would raise serious
constitutional questions” under the
First Amendment. Id. at 10-11 (citing Serbian
East Orthodox Diocese v. Milivojevich,
426 U.S. 696 (1976)). The LAD, therefore,
“should be construed to avoid governmental
entanglement with religion in order to preserve
its constitutionality.” Id. at 11
(citing Market St. Mission v. Bureau
of Rooming & Boarding House Standards,
110 N.J. 335, 341, appeal dismissed,
488 U.S. 882 (1988)).
This interpretation of the LAD is consistent
with the language of N.J.S.A. 37:1-13,
as it will appear once L. 2006, c.
103 becomes effective. That statute will
provide:
[E]very religious society, institution
or organization in this State may join
together in marriage or civil union
such persons according to the rules
and customs of the society, institution
or organization.
This
statutory provision can be seen to reflect
the Legislature’s understanding of
both the limited reach of the LAD and the
potential Constitutional complications of
an attempt by the State to dictate the ecclesiastical
services to be performed by religious figures.
It is apparent that the Legislature intended
to permit members of the clergy to exercise
the solemnization authority in accordance
with their sincerely held religious beliefs.
If those beliefs preclude recognition of
civil unions, a religious figure’s
refusal to solemnize civil unions, even
if that religious figure is regularly available
to solemnize marriages, would not violate
the LAD.
Nor would a religious figure’s refusal
to solemnize civil unions raise equal protection
concerns under the State or federal Constitutions.
Although, as noted above, differential treatment
of same-sex and mixed-gender couples by
public officials would raise significant
equal protection concerns under the State
Constitution, see Lewis v. Harris,
supra, religious figures should not
be seen as public actors in these circumstances.
As a result, the equal protection provisions
of the State and federal Constitutions are
not triggered by the decision of members
of the clergy to refuse to solemnize civil
unions. While the State must make marriages
and civil unions available on equal terms,
the performance of a religious ceremony
is not necessary for the solemnization of
either a marriage or a civil union. Thus,
the fact that some religious figures may
solemnize marriages, but not civil unions,
will not affect the equal availability of
marriages and civil unions under the law.
Conclusion
In light of your authority to supervise
and direct local registrars of vital statistics
who will have statutory authority to issue
marriage licenses and civil union licenses,
see N.J.S.A. 26:8-24, and in the
interest of uniform Statewide practices,
it would be appropriate to inform local
registrars and the public officials who
will be authorized to solemnize marriages
and civil unions of the advice provided
in this letter.
Sincerely yours,
STUART RABNER
ATTORNEY GENERAL OF NEW JERSEY
###
>>
Back
to release - AG Issues Advice on Civil Union
Law, Clergy
(1/11/07) |