Hot Docs: Ninth Circuit rules that wedding ceremonies are expressive, protected by the First Amendment

June 14, 2012

Expressive Wedding CeremonyThe U.S. Ninth Circuit Court of Appeals just issued a significant ruling regarding constitutional rights and marriage.

No, I’m not talking about the recent denial for an en banc rehearing in the Proposition 8 case.

Instead, the ruling has to do with a challenge to Hawai’i state regulations requiring a permit for “commercial activities” on state public beaches.

“Commercial activities” is defined as “the use of or activity on state land for which compensation is received by any person for goods or services or both rendered to customers or participants in that use or activity.”

“Compensation” is defined equally broadly as including, but not limited to, “monetary fees, barter, or services in-kind.”

As expansive as these regulations are, their challengers only have a problem with the fact that “commercial activities” also includes “commercial weddings.”

Since it’s not entirely clear at the outset what a “commercial wedding” is, Hawai’i’s Department of Land and Natural Resources has provided a frequently asked questions (FAQ) sheet that defines the term as:

“Weddings taking place on a state beach which have any component that involves the receipt of compensation for services or goods other than the services of a photographer.”

In addition, a permit is required even if the only person paid in connection with the wedding is a minister, priest, rabbi, or “other religious or nonprofit entity.”

So, according to this definition, a private wedding ceremony with only three attendees – the bride, the groom, and the minister – would require a permit from the state as long as it takes place on a public beach.

And while there is nothing more romantic than a small, quiet beach wedding ceremony duly authorized by state permit, the aforementioned challengers – a wedding pastor and an association of businesses that provide wedding-related services – want to see the law struck down.

Hot Doc: Kaahumanu v. Hawaii

Source: Thomson Reuters News & Insight – National Litigation

On what grounds is this challenge based?

That the permit requirements violate the free speech protections enshrined in the First Amendment.

In other words, the plaintiffs here are claiming that wedding ceremonies are a form of expression protected by the First Amendment and that Hawai’i’s restrictions on them are unconstitutional.

The Ninth Circuit ruled that wedding ceremonies could indeed be an act of expression, and, in this case would be entitled to First Amendment protection.

However, the court found that the regulations are constitutional in that they are reasonable time, place, and manner restrictions on speech in a traditional public forum.

Though the court upheld the permit requirements, it did strike down the plainly overly broad provisions allowing the DLNR “absolute discretion” to revoke or modify a permit “at anytime and for any reason”

Though that’s likely to be little consolation to the challengers since there’s no evidence that such discretion has ever been exercised, they can take comfort in the fact that the ruling has expanded free speech rights.

Although, extending First Amendment protections to wedding ceremonies may seem inconsequential at first blush (and they may turn out to be just that), the possible implications for such recognition could be also be quite far-reaching.

Could the case be made that denying a marriage license to a same-sex couple is unconstitutional content-based speech suppression?

With this ruling as precedent, such an argument seems much more plausible.

There are probably plenty more possible implications from this ruling, but it may well be pointless to speculate until they appear in court.

Regardless of what implications we might see, expansions in free speech protections such as this are rarely a bad thing for American civil rights.