Recognition of Bahá'í Marriage and Holidays in American State Lawcompiled by Ralph D. Wagner
1. Overview, by Ralph Wagner1. Marriage
All states and territories of the US recognize the legal validity of Bahá'í marriages. In most states this is an administrative practice, but in some it is found in the statutes. The following provision, from the Connecticut General Statutes Annotated, is typical:
All judges and retired judges, either elected or appointed, family support magistrates, state referees and justices of the peace may join persons in marriage in any town in the state and all ordained or licensed clergymen, belonging to this state or any other state, so long as they continue in the work of the ministry may join persons in marriage. All marriages solemnized according to the forms and usages of any religious denomination in this state, including marriages witnessed by a duly constituted Spiritual Assembly of the Bahá'ís, are valid. All marriages attempted to be celebrated by any other person are void. (C.G.S.A. s 46b-22)Other states and one territory with comparable statutes are:
Indiana (IC 31-11-6-1)States in which opinions of the Attorney General have recognized Bahá'í marriage are:
South Carolina (1960-61 Op.Att'y.Gen., No. 1080)Two unique provisions: Minnesota gives the power to perform marriages to the chair of an incorporated Local Spiritual Assembly. This is potentially in conflict with Bahá'í law, under which the chair cannot act independently of the Assembly. Bahá'í law also does not require that the officiating Assembly be incorporated, or that the chair (or any other assembly member) be present at the marriage ceremony. Two witnesses designated by the Assembly are enough. The Attorney General of South Carolina defined Bahá'í officers as “Ministers of the Gospel,” in order to conform to the exact wording of the marriage law!
In general, Bahá'ís in the US have had few difficulties in obtaining recognition of their holidays as times of excused absence from work or school. Hawaii recognizes Naw-Ruz by statute:
The 21st day of March shall be known as Bahá'í New Year's Day, provided that this day is not and shall not be construed to be a state holiday. (HRS s 8-4.5)The Attorney General of Oklahoma was asked for an opinion on the recognition of Bahá'í holy days in public schools, with reference to a statute that recognized only Jewish holidays. His reply is based on the First Amendment in the Bill of Rights as interpreted by the US Supreme Court.
2. Legal opinions, by Robert Henry, Attorney General of Oklahoma, and Susan Loving, Assistant
Office of the Attorney General State of Oklahoma
Opinion No. 87-41 June 2, 1987
The Honorable James D. Holt
The Attorney General has received your request for an official opinion asking: 1. Section 10-105 of Title 70 of the Oklahoma Statutes constitutional in view of the provisions of Article I of the Constitution of the United States which provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .” and of Section 2 of Article I of the Oklahoma Constitution? 2. Must members of the Bahá'í faith or any other recognized religion be afforded the same privilege as members of the Jewish faith concerning excused absenteeism from school for the observance of holy days?
Section 10-105 of title 70 of the Oklahoma Statutes states in part that it is “unlawful for a parent, guardian, custodian or other person having control of a child” between the ages of seven and eighteen “to neglect or refuse to cause or compel” that child to attend a public or private school. It further excuses a child who is a member of the Jewish faith from this statute for the observance of Yom Kippur and Rosh Hashanah.
Concurrence for the State's adoption of a compulsory school attendance policy can be found in the United States Supreme Court holding in Brown v. Board of Education, 347 U.S. 483, 493, 74 S.Ct. 686, 98 L.Ed. 873 (1954), which stated:
Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms. Therefore, from the language of that case, the State has the approval of the United States Supreme Court to provide for some type of mandatory attendance requirements to require a child's parent or other authority to see that such child attends some type of educational institution.The United States Supreme Court has also recognized the interests of an individual's right to free exercise of his religion in Thomas v. Review Board of the Indiana Employment Security Division, 450 U.S. 707, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981). Beliefs based on religion are protected by the Free Exercise Clause of the First Amendment which, by its terms, gives special protection to the exercise of religion.
At times, the State's rights to enact laws on behalf of its citizens under the Brown decision and the individual's rights to free exercise of religion under Thomas will be in direct conflict. Resolution of such conflict requires a careful balancing approach by the courts based on the holdings of prior decisions and implementing certain tests formulated by those decisions.
In Tilton v. Richardson, 403 U.S. 672, 678, 91 S.Ct. 2091, 29 L.Ed. 2d 790 (1971), the Supreme Court applied a four part test to determine whether a statute could withstand attack based on the religion clauses of the First Amendment.
Against this background we consider four questions: First, does the Act reflect a secular legislative purpose? Second, is the primary effect of the Act to advance or inhibit religion? Third, does the administration of the Act foster an excessive government entanglement with religion? Fourth, does the implementation of the Act inhibit the free exercise of religion?
That same test was also applied in the case of Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed. 745 (1971), a decision which was rendered by the Supreme Court on the same day as was Tilton, supra. Using the above four-part test, Section 10-105 clearly survives the first question in that the statute obviously reflects a secular purpose. The effect of Section 10-105 is not primarily the advancement or inhibition of religion, satisfying the second question. The third question, concerning government entanglement with religion, while probably not excessive, does encounter foreseeable argument from other religions complaining that the statute singles out members of the Jewish faith, implying an “entanglement” between the State of Oklahoma and the Jewish faith. The final question involving the statute's inhibition of the free exercise of religion must be viewed subjectively on a case by case basis, considering punishments or deterrent measures enforced by the local school districts for students who are considered unexcused when those students do not attend school on their respective holy days. Under such test, Section 10-105 might be held unconstitutional as applied to a given student of a particular faith.
In Zorach v. Clauson, 343 U.S. 306, 313-14, 72 S.Ct. 679, 96 L.Ed. 954 (1952), the Supreme Court noted that a state must let “each [religion] flourish according to the zeal of its adherents and the appeal of its dogma.” Section 2 of Article I of the Oklahoma Constitution states that “perfect toleration of religious sentiment shall be secured,” and implies that Oklahoma may not unduly restrict a person's religious free exercise.
The Oklahoma statute in question, however, specifically allows an exception to compulsory attendance under the provisions of Section 10-105 of title 70 of the Oklahoma Statutes in that, “[i]f any such child is a member of the Jewish faith,” that child is exempt or excused from attending school “on the days that Rosh Hashanah and Yom Kippur are observed.” This provision of the statute, on its face, appears to be in direct violation of the Establishment Clause found in the First Amendment, by reason of the Fourteenth Amendment, prohibiting the states from “establishing religion” or “prohibiting its free exercise.” The legislature properly attempted to remedy a potential conflict between the school attendance laws and religious holy days, but in doing so, it violated the Establishment Clause of the United States Constitution by providing the exception only to members of the Jewish faith instead of all religious faiths, including the Jewish faith.
The Supreme Court has held that as “far as interference with the ‘free exercise' of religion and an ‘establishment' of religion are concerned, the separation [of church and state] must be complete and unequivocal.” Zorach v. Clauson, 343 U.S. at 312. The State must be “neutral” toward religion and the government should show “no partiality to any one group.” Id. U.S. at 313-314. Section 10-105 directly violates the holding of the Supreme Court in Everson v. Board of Education, 330 U.S. 1, 15, 67 S.Ct. 504, 91 L.Ed. 711(1945), which declared that the State cannot “pass laws which aid one religion, or prefer one religion over another.” See also, Valente v. Larson, 637, F.2d 562, 565 (8th Cir. 1981).
Based on the above interpretations and rulings, we conclude that Section 10-105 of Title 70 is unconstitutional as it is currently written since it violates the Establishment Clause of the First Amendment of the United States Constitution, and Section 2 of Article I of the Oklahoma Constitution. This conclusion is, however, subject to, and must be read in conjunction with, our second conclusion as set forth below.
In addressing the second question posed concerning the excused absence for children on their holy days, we must first look to the language formulated by the United States Supreme Court in Wisconsin v. Yoder 406 U.S. 205, 214, 92 S.Ct. 477, 32 L.Ed.2d 1 (1972). In order for a state to compel school attendance against a claim that such attendance interferes with the practice of a legitimate religious belief, “it must appear either that the state does not deny the free exercise of religious belief by its requirement, or that there is a state interest of sufficient magnitude to override the interest claiming protection under the Free Exercise Clause.” See also, Whitehorn v. State, 561 P.2d 539 (Okl.Cr. 1977).
A similar situation was addressed by the United States District Court in Church of God v. Amarillo Independent School District, 511 F.Supp. 613 (N.D. Tex. 1981); affirmed 670 F.2d 46 (5th Cir. 1982). In that case, the defendant school board had adopted a local policy which allowed a student to miss only two days for religious holidays and which penalized students for unexcused absences. The plaintiffs' religion included a fundamental tenet which stated that members of that belief must abstain from secular activity on seven annual holy days. The court followed the principles addressed in Yoder, supra, to find the school's policy placed an unquestionable burden on the plaintiffs' religious beliefs, without substantial proof that the state's interest was so compelling as to override the plaintiffs' religious freedoms. Exempting students or excusing students for religious observance of holy days might be accomplished by the following three-part test which the Court used in deciding Church of God. First, the parent of the child of a religious belief must show a legitimate basis for the child's absence from school on particular days of religious observance. Second, the parent must show that compliance with the statute places an undue burden on the free exercise of religious freedom. After these two requirements have been satisfied, the State would have the burden of proving that its interest is sufficiently compelling to override the student's religious freedoms.
Shortly after the decision in Church of God, the State of Texas adopted the following statute in title 2, section 21.035(f) of the Texas statutes:
A school district shall excuse a student from attending school for the purpose of observing religious holy days if before the absence the parent, guardian, or person having custody or control of the student submits a written request for the excused absence. The school district shall excuse a student under this subsection for the days on which the religious holy days are observed and for the days on which the student must travel to and from the site where he will observe the holy days. A student whose absence is excused under this subsection shall not be penalized for such absence and shall be counted as if he attended school for purposes of calculating the average daily attendance of students in the school district. A student whose absence is excused under this subsection shall be allowed a reasonable time to make up school work missed on those days. In accordance with the customary and generally applicable educational practices in the school district, the school district may appropriately respond if the student fails to satisfactorily complete such school work. If the student satisfactorily completes the school work, the day of absence shall be counted as a day of compulsory attendance. With the advice and assistance of the state commissioner of education, the State Board of Education may adopt rules consistent with this subsection that are necessary to administer this subsection uniformly.This section replaced the former section 21.035(f) which read:
A person who is a member of the Jewish faith shall be excused from attending school on the days that Rosh Hashanah and Yom Kippur are observed, but shall be counted as if he attended school for purposes of calculating the average daily attendance of students in the school district.Specifically addressing your question regarding members of the Bahá'í faith, we are informed that members of that faith observe eight holy days during the calendar school year. A reading of section 10-105 of title 70 does not reveal any exception to the compulsory attendance policy respecting members of the Bahá'í faith, or any religious faith other than the Jewish religion, on their holy days. Were a school district to abide strictly by the language of the statute, it would not be required to excuse members of the Bahá'í faith on their holy days and the school district could impose any punishment or penalty adopted by its governing board.
However, in light of the above cited ruling of the United States Supreme Court, where there is (1) a legitimate basis for a student's absence from school on particular days of religious observance and (2) compliance with 70 O.S.1981, s 10-105(A) requiring compulsory school attendance places an undue burden on the free exercise of religion, and (3) the state cannot show an interest sufficiently compelling to override the student's religious freedom, a school district may not refuse to excuse absence from school of members of the Bahá'í or any other faith, on their religious holy days.
Although we have found that s 10-105(A)(4) is not facially neutral and therefore is unconstitutional, the statute nevertheless evidences an obvious state policy of recognition of the rights of members of the Jewish religion to be absent from school to observe its holy days.
It is, therefore, the official opinion of the Attorney General that:
1. Title 70 O.S.1981, s 10-105 is unconstitutional as it violates the Establishment Clause of the First Amendment of the United States Constitution and Section 2 of Article I of the Oklahoma Constitution by recognizing an exemption from the compulsory attendance law only for one particular religious faith, instead of all recognized religious faiths. 2. Where there is (1) a legitimate basis for a student's absence from school on particular days of religious observance and (2) compliance with 70 O.S.1981, s 10-105(A) requiring compulsory school attendance places an undue burden on the free exercise of religion; and (3) the state cannot show an interest sufficiently compelling to override the student's religious freedom, a school district may not refuse to excuse absence from school of members of the Bahá'í or any other faith, on their religious holy days.
Attorney General of Oklahoma
19 Okl. Op. Atty. Gen. 80, Okl. A.G. Opin. No. 87-41, 1960-61 Op.Att'y.Gen., No. 1080