My friend, Literata, has a guest post up at the Wild Hunt explaining that Arlington County, Virginia recently denied her an order that would have authorized her to perform marriages in the Commonwealth of Virginia. (If you haven’t read her post, please do so for the background, which I won’t repeat here.) I thought that I’d add my thoughts on this issue as a Witch, as long-time resident of Arlington County, and as someone with a passing familiarity with the law.*
First, Arlington is the Virginia county just outside of Washington, D.C. Large parts of it were actually once, until Retrocession, part of Washington, D.C. The home of the Pentagon and many federal government employees, Arlington is a very “blue” area, politically. It’s a high-income area and has a large percentage of citizens with bachelor and advanced degrees. Not exactly the bible belt.
Given our proximity to Washington, D.C. and to Maryland, many local Pagan groups are not exclusive to Arlington; membership is often comprised of residents from all three jurisdictions. I’m in the broom closet at work and I certainly don’t go out of my way to advertise my religion. But my circle often holds rituals out in my yard and I don’t close the door to my ritual room when neighbors drop by to chat, to return a dish from our annual block party, or to ask for a donation to a local charity. You’d be hard-pressed to drive by my yard near Halloween and not say to yourself, “A Witch lives here.” During a recent primary, one candidate came to my door and I asked him about his attitude towards Wiccans, identifying myself as a Witch. He never blinked an eye and went on to explain that his experience in the military included opportunities for Wiccan service members to practice their religion and that he regarded them as good people and good soldiers. So, again, not exactly the bible belt.
I know Literata and (full disclosure) consider her a dear friend. We worked together on the recent Dominionist attack on the Goddess Columbia and I’ve been honored to do magic with her related to other instances of Wiccans standing up for their 1st Amendment rights. She’s an intelligent and serious person; I’m proud to call her a co-religionist and, were I ever considering handfasting/marriage, she’s be my first choice for an officiant.
Virginia law says:
Order authorizing ministers to perform ceremony.
When a minister of any religious denomination shall produce before the circuit court of any county or city in this Commonwealth, or before the judge of such court or before the clerk of such court at any time, proof of his ordination and of his being in regular communion with the religious society of which he is a reputed member, or proof that he holds a local minister’s license and is serving as a regularly appointed pastor in his denomination, such court, or the judge thereof, or the clerk of such court at any time, may make an order authorizing such minister to celebrate the rites of matrimony in this Commonwealth. Any order made under this section may be rescinded at any time by the court or by the judge thereof.
Now, you’ll note that the law says that the judge or clerk of the court may make an order authorizing the minister to celebrate the rites of matrimony in the Commonwealth (which means, for our purposes, the State) of Virginia. When people write laws, the word “may” is very different from the words “shall,” or “will,” or “must.” “May” implies, to anyone who’s been through even the first year of law school, that the judge or clerk also “may not” issue the order. The word “may” invests the clerk or the judge with an amount of discretion that would not be present if the statute said “shall make an order,” or “will make an order,” or even “must make an order.” While the distinction may seem like nit-picking or mere semantics to laypersons, it’s black-letter law, taught to first year law students, that “may” confers “discretion.”
However, even when a statue invests an official with discretion (and, trust me, there are, in law libraries throughout the country, entire bookshelves-full of federal, state, and local statutes and regulations which do just that), there are limits upon the exercise of that discretion. The official may not act in a manner that is arbitrary and capricious. The official may not, for example, refuse to grant authorization to perform legal marriages to African American ministers or to Jewish rabbis simply because the official is a racist or an anti-Semite. The official can’t discriminate against religions that ordain female clergy, nor can s/he toss a coin in the air and only grant authorizations to those applicants who come up “heads.” Similarly, the official must apply the same rule to everyone. Thus, if the clerk of the court tells Literata that she may not perform legal marriages because her coven does not have a specific address where they perform rituals, then he needs to tell the same thing to everyone, including the Christian “house church” minister and the without-a-congregation Opus Dei priest.
So, with that as background, let’s look at what Virginia courts have had to say about this matter.
In Cramer v. Commmonwealth, 202 S.E. 2d 911 (1974), the Supreme Court of Virginia affirmed a lower court which rescinded the authority of various Universal Life Church, Inc. ministers to perform legal marriages in Virginia. (The ministers asked the Supreme Court to grant certiorari (hear their appeal of the Virginia decision), but the Supreme Court denied cert. This can happen for a variety of reasons and does not necessarily mean that the Supreme Court agreed with the Virginia Supreme Court.) There, the Virginia Supreme Court explained that the current law (used, by the Arlington County clerk of the court to deny Literata the ability to perform legal marriages,):
can be traced back through the successive Codes of Virginia to an Act of the General Asembly, October, 1784, which read in part: “It shall and may be lawful for any ordained minsiter of the gospel in regular communion with any society of Christians, and every such minister is herby authorized to celebrate the rites of matrimony according to the forms and customs of the church to which he belongs.” . . . The Act of of 1784 also provided for the appointment of ministers in very much the same manner as present day Code [section] 20-23. Such appointment was not granted in 1784 to any minister who was an itinerant, or who was not settled within some parish, or with some Christian congregation within the Commonwealth.
The court went on to reject the lower court’s argument that the law only authorized full-time ministers.
It is a matter of common knowledge that there are many ministers in Virginia who serve their congregations with complete fidelity and efficiency while holding outside employment and deriving the major portion of their income from such employment.
Similarly, the court rejected the Universal Life Church ministers’ argument that the law imposed a religious test as a prerequisite to performing legal marriages. Admitting the “religious background” of the law, the court noted the:
struggle for religious freedom which ultimately resulted in the enactment of legislation which granted the right to perform marriages to ministers of all faiths.
Rather, the court upheld the lower court’s actions because it found that the State had an interest in the “contract between the parties who marry and”:
in the proper memorializing of the entry into, and execution of, such a contract. In the proper exercise of its legislative powers it can require that the person who performs a marriage ceremony by certified or licensed.
The court hung this entire decision upon the State’s need to have “persons of responsibility and integrity” who were “possessed of some educational qualification” such that the State could trust them to faithfully fill out and file the paperwork needed to record a marriage. Because the court found that the Universal Life Church was basically a commercial enterprise that would “ordain” anyone upon payment of a small fee (indeed, that would even “ordain” someone unaware that the fee had been paid in hir name), the court affirmed the lower court’s removal of the ability to perform legal marriages from the Universal Life Church ministers. It said that:
A church which consists of all ministers and in which all new converts can become instant ministers, in fact has no “minister” within the contemplation of [Virginia law]
In my phone & on-line interviews with her, Literata explained how her case is different from Cramer:
I have studied with the Order of the White Moon for over a year. The process for becoming an ordained High Priestess through OWM includes months of study under the supervision of all the existing High Priestesses of the Order, an internship period teaching students, and ultimately the vote of the Ordination Council of OWM. Not everyone who applies to study for ordination is accepted, and not all those who are accepted are ordained. I was ordained after completing all the requirements, receiving excellent feedback from the existing High Priestesses, and a unanimous vote of the Ordination Council.
OWM’s teachings focus on helping women connect with the divine feminine; the Order is incorporated in California and has had 501c3 status for several years now and has had ordained High Priestesses act as ministers in many states. The Order of the White Moon currently has hundreds of members and fewer than twenty High Priestesses.
My personal practice is not purely Goddess-oriented. OWM does not require that I practice or minister in a style identical to their teachings, but my studies of women’s spirituality and my continuing ministry with women seeking the divine feminine are a vital part of my ongoing practice and teaching.
Following Cramer, Virginia law was static until May of 1998, when the Circuit Court of Fairfax County, Virginia (a county that neighbors Arlington County and whose opinions would be, at least, informative for Arlington County courts) issued In re Application of Rosemary Kooiman to Celebrate the Rites of Matrimony. 45 Va. Cir. 503 (1998). Ms. Kooiman, a well-known local Pagan, now buried in Arlington Cemetery near her husband’s grave, marked with a Pentacle, founded a Wiccan group known as the Nomadic Chantry of the Gramarye. A resident of Maryland, she applied to Fairfax County for authorization to perform legal marriages under the same section of the Virginia Code as did Literata. The Court denied her application.
Noting that the Chantry met on full Moons in Ms. Kooiman’s basement (which should lay to rest all of the assertions that Literata should have just given the Clerk of the Court her home address), the court noted a lack of any “handbooks or guidelines for Chantry High Priestesses as well as a lack of any evidence that the Chantry was connected with the Fourth-Circuit-recognized Church of Wicca.”
The court interpreted the law as providing a two-part test. Successful applicants must (1) provide proof of ordination and (2) be in regular “communion” (which, Cramer said, simply meant “connection” and had no religious meaning) with the religious society of which the applicant was a member. It avoided the question of whether the Chantry was a “religion,” explaining that “religion is so highly personal and private” a matter as to be outside the realm of judicial determination.
The court found support in both Cramer and “logic” for the:
proposition that a self-proclaimed high priestess of a small coven of witches meeting monthly in her basement is simply not what the Virginia General Assembly had in mind when they said the Court may give a marriage celebrant license to a minister of a religious denomination.
Ms. Kooiman apparently later received permission, thanks to the ACLU, from the Norfolk County Court to perform legal marriages. (If anyone can help me get access to the Alexandria or Norfolk County cases involving Ms. Kooiman, I’d be grateful.) Because the statute provides that a minister, once authorized, may perform legal marriages “in this Commonwealth,” I’m assuming that, even once denied authorization by, say, Arlington County, a minister authorized by any other county could perform legal marriages throughout the Commonwealth, including, say, Arlington County.
A few months later, the Supreme Court of Virginia considered In Re: Application of Jack Ginsburg to Celebrate Marriages, 372 S.E. 2d 387 (1988). There, Mr. Ginsburg, a Quaker, applied for authorization, as a minister, to conduct lawfull marriages and was, in Fairfax County, Virginia, denied. Relying heavily upon Cramer (see a pattern here?), the court explained that Quakers regularly select their Clerks, who may perform marriages. Mr. Ginsburg argued that he was a “minister” within the definition of the statute and should have been authorized to perform legal marriages.
The court agreed with Cramer that a minister could be someone who held a less-than full-time position and explained that “ordain” could mean “appoint, arrange, order, manage, and establish by joint appointment.” A “minister,” is selected in accordance with the “ritual, bylaws, or discipline of the order.”
Similarly, a “minister,” was one who:
has furnished proof of his ordination and of his being in regular communion with the religious society of which he is a reputed member.
A few points:
* We’re still in that phase of a lawsuit that most lawyers recognize as the time to continue to make nice and pretend that, perhaps, the official simply misunderstood and will change hir mind upon the presentation of more facts. That’s the ONLY reason why I haven’t suggested that local Pagans go all full-frontal-assault on Mr. Ferguson, who is an elected official.
* In the law, what we do with cases such as Cramer is figure out how to distinguish the case at bar from existing precedent. As noted above, I do think that Literata’s case can be distinguished from Cramer and Kooiman and can be analogized to Ginsburg.
* Literata will, hopefully, be getting advice from lawyers who practice in this area. She should follow their advice. Basic advice for anyone in similar situations is to document, document, document. Set up a file that contains everything that you submitted, everything that the officials said, etc. Literata began this process by asking for a written list of the ways in which she failed to comply with the law. The statement that there were “other things” that the official would not list is hugely important. Obviously, if you’re an earnest citizen attempting to comply with the law, you need a list of the ways in which your application fails to comply. Once you meet those conditions, the fair assumption is that you’ll be granted authorization. An un-named list of “other things” can shift constantly and deny minority religions any serious attempt to comply with the statute. Even Mr. Ferguson should have learned that in law school.
** It seems obvious to me that a valid religion could reject having a specific address for their rituals. Wiccans who believe that there are, in the words of the poet, no unsacred places, could deliberately choose, as a part of their catechism, not to meet at any specific address. Wherever I, as a Priestess, cast a circle is, in my religion, Sacred Space. (I do not know if this is true of Literata’s group.) Virginia would discriminate against such religions if it demanded an address in order to grant authorization to perform legal marriages. Conversely, the State could probably demand an address where it could, should the need arise, get in contact with those licensed to perform legal marriages. Asking Literata for her home address or some other legal address where she could receive mail would seem to me to be a valid requirement, but that’s not what Arlington County is demanding in this case.
*** It’s possible that the Arlington County Clerk of the Court is using “having an address” as a simple and easy substitute for the qualities enumerated in Cramer for being “serious” and “responsible.” That’s not unlike a recently-disallowed practice of picking ministers off of a local list of churches. To the extent that it favors Christian churches over other religious groups, it’s not allowable.
Picture found here.
*I am not a member of the Virginia Bar and my area of expertise is in a very different area of the law. I am not providing legal advice in this post. The opinions expressed in this post are mine alone and are not meant to represent the opinions or positions of any other person or entity.