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I've heard a lot of controversy over whether or not pastors who deny same sex couples should be fined, jailed, etc. If the pastor is licensed by the state don't they then have to be religiously unbiased like any government employee or establishment?

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    In the United States, marriage licenses are granted to the couple to be married, not to any ceremonial officiant. I'm not aware of religious officiants who are licensed by states. Except maybe by the Church of England. The fact that states will recognize religious officiants does not constitute a license in the sense you describe. Or have I missed something?
    – feetwet
    Commented Jul 14, 2016 at 22:09
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    A pastor can refuse to marry a couple on religious grounds. For example, the couple may not be adherents of the pastor's religion, or they may be in violation of some religious principle such as a prohibition against marriage after divorce. Similarly, if it is against the principles of a religion for people of the same sex to marry, then such couples could be refused.
    – phoog
    Commented Jul 14, 2016 at 23:16
  • Every doctor is licensed by the state. Is every doctor a government employee? Commented Jul 15, 2016 at 9:14

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The connection between priests and marriage is via laws regulating the solemnization of marriage. Washington's RCW 26.04.050 is typical:

...Justices of the supreme court, judges of the court of appeals, judges of the superior courts, supreme court commissioners, court of appeals commissioners, superior court commissioners, any regularly licensed or ordained minister or any priest, imam, rabbi, or similar official of any religious organization, and judges of courts of limited jurisdiction as defined in RCW 3.02.010

Not ship captains, notice. Solemnization is not required. RCW 26.04.010(4) says

No regularly licensed or ordained minister or any priest, imam, rabbi, or similar official of any religious organization is required to solemnize or recognize any marriage. A regularly licensed or ordained minister or priest, imam, rabbi, or similar official of any religious organization shall be immune from any civil claim or cause of action based on a refusal to solemnize or recognize any marriage under this section.

There is no similar waiver for non-religious officiants. The First Amendment is theoretically what has limited governments ability to require priests to violate their religious beliefs; but I would not be surprised if that changes in the near future. In which case, permissive laws like the Washington law could be trumped by federal anti-discrimination law.

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  • Does RCW only apply to Washington or all of the US? Commented Jul 14, 2016 at 22:37
  • @EdwardSeverinsen: RCW only applies to Washington, but it is typical of what you would find in any state's legal code. E.g., here is the PA code.
    – feetwet
    Commented Jul 14, 2016 at 22:43
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    "I would not be surprised if that changes in the near future": Would Catholic priests also be required to marry couples who are divorced in the eyes of the state, but who have no annulment from the church? Would they be required to marry non-Catholic couples? I would be very surprised if that changed in the future.
    – phoog
    Commented Jul 14, 2016 at 23:20
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    @user6726 The first amendment protects the religious organization (e.g., a particular church) and its clergy from being forced to marry people who do not comply with that religion's requirements. There is no law requiring clergy to marry anyone, they are only authorized to do so. They are not officers of the state (for which see also the first amendment). The fact that the couple may be gay (federally protected) or adherents of another religion (also federally protected) is not particularly important.
    – phoog
    Commented Jul 15, 2016 at 2:10
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    @DavidSchwartz it appears to me that the case isn't sufficiently similar. Churches (e.g.) are not public accommodations prohibited from discriminating on the basis of religion, and telling a priest (e.g) whom he must marry is certainly an impediment to the free exercise of religion.
    – phoog
    Commented Jul 15, 2016 at 13:16

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