Originally Posted by patteeu
That's an interesting find. I don't see how it could be constitutional unless by "solemnizing" they mean performing the ceremonial functions of a state-sanctioned marriage as opposed to performing a purely religious ceremony. The statute doesn't include a definition for "solemnize" so there is some ambiguity, but one reasonable principle of construction is to embrace the meaning that makes a law constitutional instead of the meaning that makes it unconstitutional.
In a lawsuit concerning this Indiana provision, a court refused to grant injunctive relief to a plaintiff who was suing on a somewhat unrelated issue. In it's decision, the court says
This judge seems to be thinking in terms of the state aspect of a solemnization rather than the ceremonial parts. Since this case isn't really testing the issue we're discussing, it's not necessarily dispositive, but it definitely doesn't support the idea that it could be used to prevent a purely religious activity.
Right. There are two different issues here. (1)The person who "solemnizes" the marriage doesn't have to be a religious authority and (2) that person has responsibilities beyond the ceremony itself. So a good chunk of marriage law is just going to be about whether the ceremony was performed by someone who is authorized to do so and if that person did the paperwork correctly. The solemnization and the recording are two distinct acts (or sets of acts) though. A link in that article points to this Indiana Code:
Failure to timely file marriage license and duplicate marriage certificate
Sec. 8. A person who:
(1) solemnizes a marriage; and
(2) fails to file the marriage license and a duplicate marriage certificate with the clerk of the circuit court not later than ninety (90) days after the date the marriage was solemnized;
From that I would say that "solemnization" refers to the ceremony whether it is or is not a religious one.