Codebook –
Marriage & Weddings
Coming into 2023, all states authorized clergy and government officials to solemnize, celebrate, and/or license marriages in their state. This group of safeguards captures any religious exemptions by states for these entities’ participation in licensing marriages, marriage solemnization, or wedding celebrations that would conflict with religious beliefs or dictates. One state even provides for-profit businesses the right to refuse participation. Some states make explicit the penalties from which exempted parties are protected, including mention of religious organizations’ tax-exempt status.
Federal Context
The Supreme Court’s Obergefell v. Hodges (2015) decision recognized a right to same-sex marriage. While the federal Respect for Marriage Act (2022) (RFMA) provides religious exemptions from what would otherwise appear to be its implications, as explained in sections 1 and 3 above, RFMA has no practical impact on what states can effectively safeguard in this space.
External Sources
American Marriage Ministries (AMM) maintains a list of all the state marriage solemnization laws and procedures. We utilized the state code citations in this source to identify the area of the law where marriage and wedding laws typically exist. NCSL, until recently, provided a summary table “Marriage Solemnization: Religious Exemption Statutes” which aimed to exhaust all the state marriage solemnization laws as of May 11, 2017. The website for this table, which was accessed in December 2022, is now defunct.
Identifying Codes and Assigning Scores
In addition, we found some marriage-related laws for religious organizations and for-profit entities within public accommodation laws. We first read marriage and wedding laws to determine whether a state updated these to reflect the legalization of same-sex marriage at the federal level. By doing so, we sought to capture whether states might avoid making exemptions where they find it politically unpopular to recognize same-sex marriage. (While this does not affect our index, it is interesting for considering the possible barriers to instantiating religious safeguards.) Then we identified whether a state allows any refusal/recusal rights to individuals or organizations in solemnization, celebration, or participation based on religious beliefs and for what entities these protections apply.
Verifying Data
Throughout 2022, BillTrack50 provided the RLS team with updates on relevant bills and state laws related to marriage and weddings and all the citations from RLS 2022 data, ultimately revealing no changes to relevant law. The statutes cited for this safeguard were reread in December 2022 and verified against a December 2022 archived version of NCSL’s now-defunct “Marriage Solemnization: Religious Exemption Statutes” table.
Missing Data
We rely on the area of each state’s code in specifying who can legally perform a marriage to indicate the approximate location of any rights of recusal/refusal and on reading widely in the proximate area to seek out those allowances in cases where the external sources suggest there are none. It is important to note that even in states where antidiscrimination laws do not exist, or where they apply to few protected classes, some states clearly responded to Obergefell v. Hodges by legislating safeguards for various entities in the areas of marriage and weddings.[1]
Safeguard: Marriage & Weddings—Religious Entity Refusal
(comprised of three items)
Item: Participation by Clergy—This item tracks whether there are safeguards for clergy to refuse solemnization of marriages that violate their religious belief or doctrines.
Possible Codes
A = State statutory law recognizes same-sex marriage and includes safeguards for clergy
B = State statutory law recognizes same-sex marriage and includes no safeguards for clergy
C = State statutory law does not reflect the federal recognition of same-sex marriage but the state includes safeguards for clergy
D = State statutory law does not reflect the federal recognition of same-sex marriage and includes no safeguards for clergy
Possible Scores
1 = State safeguards clergy’s right to refusal (A, C)
0 = State does not safeguard clergy’s right to refusal (B, D)
Item: Facilitation by Religious Organizations—Religious organizations, including religious-controlled organizations and religious nonprofits, often facilitate or host marriage and wedding celebrations. This item characterizes whether there are any safeguards for these organizations to refuse solemnization, participation, celebration, or facilitation of marriages that violate the religious tenets of the organization.
Possible Codes
A = State statutory law recognizes same-sex marriage and includes safeguards for religious organizations
B = State statutory law recognizes same-sex marriage and includes no safeguards for religious organizations
C = State statutory law does not reflect the federal recognition of same-sex marriage but the state includes safeguards for religious organizations
D = State statutory law does not reflect the federal recognition of same-sex marriage and includes no safeguards for religious organizations
Possible Scores
1 = State safeguards religious organizations’ right to refusal (A, C)
0 = State does not safeguard religious organizations’ right to refusal (B, D)
Item: Protections from Government Action—Some states mention explicitly that statutory exemptions preclude certain penalties or repercussions from the state. This item combines an indicator that there is explicit protection of tax-exempt status with an additional indicator that the protections from government penalties extend beyond tax-exempt status.
Explicit Protection of Tax-Exempt Status—This indicator reflects the language of the law (directly or indirectly by using broad language about public consequences) about whether it protects the tax-exempt status of a nonprofit organization that exercises its right to nonparticipation.
Possible Codes
A = State statutory law recognizes same-sex marriage and includes protection of tax-exempt status
B = State statutory law recognizes same-sex marriage and does not include protection of tax-exempt status
C = State statutory law does not reflect the federal recognition of same-sex marriage but the state includes protection of tax-exempt status
D = State statutory law does not reflect the federal recognition of same-sex marriage and does not include protection of tax-exempt status
Protections from Government Penalties Beyond Tax-Exempt Status—This indicator reflects whether a state’s law ensures that a wide range of government repercussions will not follow from exercising the granted religious exemption.
Possible Codes
E = State statutory law recognizes same-sex marriage and precludes a wide range of public penalties
F = State statutory law recognizes same-sex marriage and state does not mention what penalties are proscribed or goes no further than protecting tax-exempt status
G = State statutory law does not reflect the federal recognition of same-sex marriage but precludes a wide range of public penalties
H = State statutory law does not reflect the federal recognition of same-sex marriage and the state does not mention what penalties are proscribed or goes no further than protecting tax-exempt status
Possible Scores for the Protections from Government Action Item
1 = State precludes a wide range of public penalties (E, G on second indicator)
0.5 = State safeguards the tax-exempt status of a religious organization only (F or H on second indicator and A or C on first indicator)
0 = State does not mention what penalties are proscribed (B or D on first indicator)
A note about these indicators combining into one item: The protection of tax-exempt status is conditional on whether broader penalties are precluded. Specifically, tax-exempt status is included in a state’s mention of broader government-initiated consequences. Therefore, in a simple index, these two indicators should not be treated as additive. The score above effectively adds two indicator functions and divides by 2 to get 0, 0.5, or 1.
Safeguard/Item: Marriage & Weddings—Public Official Recusal
This item tracks whether there are safeguards for government officials (who license and/or solemnize marriages) to recuse themselves if it violates their personal religious beliefs.
Possible Codes
A = State statutory law recognizes same-sex marriage and includes safeguards for public official recusal
B = State statutory law recognizes same-sex marriage and includes no safeguards for public official recusal
C = State statutory law does not reflect the federal recognition of same-sex marriage but the state includes safeguards for public official recusal
D = State statutory law does not reflect the federal recognition of same-sex marriage and includes no safeguards for public official recusal
Possible Scores
1 = State safeguards public official recusal (A, C)
0 = State does not safeguard public official recusal (B, D)
Safeguard/Item: Marriage & Weddings—For-Profit Business Nonparticipation
For-profit businesses that provide goods or services for marriage ceremonies or wedding celebrations are accommodated by one state, Mississippi, which provides a safeguard to these businesses in solemnization, recognition, association, or celebration of marriages or weddings that violate personally held religious or moral beliefs of the business or business owner. This item captures this possible, though rare, safeguard.
Possible Codes
A = State statutory law recognizes same-sex marriage and includes safeguards for nonparticipating for-profit business
B = State statutory law recognizes same-sex marriage and includes no safeguards for nonparticipating for-profit business
C = State statutory law does not reflect the federal recognition of same-sex marriage but the state includes safeguards for nonparticipating for-profit business
D = State statutory law does not reflect the federal recognition of same-sex marriage and includes no safeguards for nonparticipating for-profit business
Possible Scores
1 = State safeguards nonparticipating for-profit business (A, C)
0 = State does not safeguard nonparticipating for-profit business (B, D)
[1] Mississippi is a prime example, having the most extensive exemptions with respect to marriage and weddings and no antidiscrimination law in public accommodations other than for disabled individuals. See NCSL “State Public Accommodation Laws” (2021).
