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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 Jul 14 '16 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 Jul 14 '16 at 23:16
  • Every doctor is licensed by the state. Is every doctor a government employee? – David Schwartz Jul 15 '16 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.

  • Does RCW only apply to Washington or all of the US? – Edward Severinsen Jul 14 '16 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 Jul 14 '16 at 22:43
  • "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 Jul 14 '16 at 23:20
  • Well, being divorced is not presently a federally protected class. We can maintain our respective degrees of surprise or lack thereof, and see what happens in the near future. Politics is hard to predict. – user6726 Jul 14 '16 at 23:45
  • @user6726 but religion is federally protected, and I cannot imagine that clergy would ever be forced to marry people who fail to comply with the requirements of the clergy's religion. – phoog Jul 15 '16 at 1:55

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