Constitutional experts weigh in on new videoconferencing marriage order

An order saying California couples can obtain marriage licenses remotely and hold virtual ceremonies to solemnize their union during the public shutdown are leading constitutional experts to question whether there could be court challenges.

Gov. Gavin Newsom's order Thursday is set to expire in 60 days unless extended by another one.

Constitutional challenges have been filed across the state against other aspects of the shutdown orders. While some legal experts said no one's right to get married was being taken away, others said people may object to carrying out their nuptials in this fashion and the barrage of shutdown orders lack uniformity.

"I don't believe this order violates any individual rights because, in theory, it makes it easier for people to get married, not harder," said Scott J. Street, partner at Musick, Peeler & Garrett LLP. "But I think the order is unnecessary and unrelated to the powers the governor has under the California Emergency Services Act."

Many of the governor's decisions have changed from one day to the next, he said. It shows how much the state needs the Legislature back in full session to exercise some check the governor's actions, he said.

"This is just a part of a pattern of decision making by the governor that seems less designed to address any kind of public health emergency and more designed to respond to issues that arise because of the vagueness of his prior orders," Street said.

California already has a statute allowing parties to get married without physically appearing before a county clerk, provided by Section 426 of the Family Code, he added.

UCLA School of Law professor Eugene Volokh agreed the remote marriage order makes it easier for parties to wed. He questioned whether there were any legal problems that might arise from being married remotely.

There are ways people could challenge the order in the same way there have been legal challenges to Newsom's bans on religious services, Volokh said. No religion has been singled out, he said, and there seems to be a good reason for the temporary ban due to the epidemic.

"Someone could say, 'I want to go to my own church in order to marry in a religious ceremony the same way I go to church on Sunday to listen to a sermon,'" Volokh said. "Generally speaking, most courts have already said no, because the government's orders banned all gatherings."

David Urban, senior counsel at Liebert Cassidy Whitmore, who represents public sector entities, pointed out there could be several constitutional challenges based on the constitutional rights of free expression and equal protection of the laws.

Religious wedding ceremonies in places of worship would be an obvious challenge to bring under the First Amendment, according to Urban. Some religions could have specific, in-person requirements that aren't met by the government's orders. However, these challenges remain subject to the government's compelling interest to keep the public safe, and the neutral law of general applicability to address public health threats posed by COVID-19, Urban said.