Federal judge says state’s marriage-counseling policy violates First Amendment

Wednesday, May 31, 2000

A Wisconsin program designed to help clergy in counseling couples before marriage is unconstitutional, a federal judge has ruled.

Last December, the Freedom From Religion Foundation, a nonprofit based in Madison, sued the state in federal court, arguing the state’s Community Marriage Policy Project advanced Christianity in violation of the establishment clause of the First Amendment. Wisconsin’s budget passed last year, included an allocation of $210,000 for the project, which was intended “for the purpose of coordinating the development of, and assisting local members of the clergy to develop community-wide standards for marriages solemnized in this state by members of the clergy.”

The foundation also represented the Rev. Charles Wolfe, a pastor of the Plymouth Congregational United Church of Christ. Wolfe argued that the state marriage policy amounted to government involvement with the religious practices.

On May 25, U.S. District Judge John C. Shabaz concluded that the Wisconsin marriage policy did subvert the separation of church and state.

The operation and effects of the policy “constitutes an indirect subsidy to members of the clergy and their religious organizations in the form of state assistance and services,” Shabaz wrote in Freedom From Religion Foundation v. Leean. “By providing assistance and coordination of the clergy’s development of community marriage standards, the Wisconsin legislature has attempted to relieve members of the clergy and their religious organizations from incurring costs attendant with performing the activities involved in such development.”

Assembly Speaker Scott Jensen urged the passage of the counseling policy and said on May 26 that he would urge passage of a similar proposal next session. Gov. Tommy Thompson was forced to hire a private attorney to defend the policy after the Wisconsin Attorney General James Doyle refused to do so, saying the bill failed to pass constitutional muster.

“Clearly, we spend hundreds of millions of dollars each year on the fallout of divorce,” Jenson told the Milwaukee Journal Sentinel. “We ought to experiment with modest efforts to try to strengthen marriage in the first place.”

Shabaz said the state’s marriage policy made state funds available only to religious officers and unconstitutionally favored religion.

“The project’s benefits, in the form of an in-kind subsidy, are confined to a strictly and necessarily religious class of recipients,” Shabaz wrote in his 14-page decision. “Without even considering whether state assistance may be either helpful or necessary, by providing it only to clerical officiates in an attempt to strengthen marriages, the Wisconsin legislature has favored clerical officiates over the secular and has conveyed a message that religiously solemnized marriages are preferred to those secularly solemnized. Such an imprimatur stamped on religion by the state is a violation of the Establishment Clause.”

Annie Laurie Gaylor, a spokeswoman for the Freedom From Religion Foundation, lauded Shabaz’s ruling and dubbed Jensen a “loser.”

“Representative Jensen’s marriage meddlers proposal was very unpopular and roundly criticized by editorial writers across the state,” Gaylor said. “It is too bad he won’t let this alone. We have very soundly vanquished this idea.”