MARRIAGE ‑- SOLEMNIZATION ‑- COUNTIES ‑- AUDITOR'S DISCRETION IN ISSUANCE OF MARRIAGE LICENSES

MARRIAGE ‑- SOLEMNIZATION ‑- COUNTIES ‑- AUDITOR'S DISCRETION IN ISSUANCE OF MARRIAGE LICENSES.

Solemnization of marriage may be performed by one who is either a regularly licensed or ordained minister or priest or who is so authorized to solemnize or attest thereto as the presiding, officiating, or recording officer of a religious organization.

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                                                                February 26, 1958

Honorable Tom A. Durham
Prosecuting Attorney
Whatcom County Court House
311 Grand Avenue
Bellingham, Washington                                                                                        Cite as:  AGO 57-58 No. 167

Dear Sir:

            You have requested the advice of this office on a question which we paraphrase as follows:

            What standards can be followed by a county auditor in the determination of whether a particular minister or other religious officer may solemnize a marriage?

            Our answer is contained in the following analysis.

                                                                     ANALYSIS

            In addition to RCW 26.04.050 whereby "any regularly licensed or ordained minister or any priest of any church or religious denomination" is so authorized, solemnization of marriage is governed by the terms of RCW 26.04.120, which reads as follows:

            "All marriages to which there are no legal impediments, solemnized before or in any religious organization or congregation, according to the established ritual or form  [[Orig. Op. Page 2]] commonly practiced therein, are valid; and a certificate, containing the particulars specified in this chapter shall be made and filed for record by the person presiding or officiating in or recording the proceedings of such religious organization or congregation, in the manner and with like effect as in ordinary cases."

            Also, RCW 26.04.060 relating to marriage before unauthorized cleric is pertinent:

            "A marriage solemnized before any person professing to be a minister or a priest of any religious denomination in this state, or professing to be an authorized officer thereof, is not void, nor shall the validity thereof be in any way affected on account of any want of power or authority in such person, if such marriage is consummated with a belief on the part of the persons so married, or either of them that they have been lawfully joined in marriage."

            The three aforementioned statutes are clearly in pari materia and must be construed together.  SeeState v. Houck, 32 Wn. (2d) 681.  When they are so construed it is readily apparent that the legislative intention has been entirely liberal in this regard in keeping with Amendment Four of the state constitution dealing with religious freedom which reads, in part, as follows:

            "Absolute freedom of conscience in all matters of religious sentiment, belief and worship, shall be guaranteed to every individual . . ."

            It should also be noted that Washington is not included in the large number of states requiring religious officers to obtain some form of official sanction to solemnize marriages.  1 Vernier, American Family Laws 82.

            Thus, we conclude that the following standards may be followed in determining whether a particular minister or other religious officer is enabled to solemnize a marriage:

            (1) Is he, in the words of RCW 26.04.050, a ". . . regularly licensed or ordained minister or any priest of any church or religious denomination . . .?"

             [[Orig. Op. Page 3]]

            According to common practice, we understand one to be "licensed" who though not ordained as a minister has been invested with a similar but limited authority, generally on a temporary basis, by his particular church or religious denomination.

            (2) If he cannot be so described, is he the individual within a particular religious organization who by its established ritual or form is authorized to solemnize a marriage or attest to its solemnization as the presiding, officiating, or recording officer thereof?

            In the application of these standards, we believe that a rather broad and liberal interpretation should be accorded the term "religious organization."  The lack of conformity with established religious belief and institutions would appear to be of no significance here.  State ex rel. Bolling v. Superior Court for Clallam County, 16 Wn. (2d) 373.

            Finally, it should be remembered that discretion may only be exercised by the auditor in counties where the application for a marriage license itself requires the solemnizing official to be named.  In the absence thereof, by the terms of RCW 26.04.190, there could be no justification for refusing to issue the license.  In general, under this chapter, the auditor's issuance of marriage licenses is a ministerial act concerning which he has little discretionary power.

            We trust the foregoing will be of some assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

FRANKLIN F. THORP
Assistant Attorney General