Request By:
Mr. Victor P. Hamilton
Chairman
Division of Philosophy and Religion
Asbury College
Wilmore, Kentucky 40390
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your basic question is whether or not as an alien of the United States (you are a Canadian citizen) you would be able to be licensed to perform marriages in Kentucky.
Your letter reads in part:
"I am a Canadian citizen, and am also an ordained clergyman in the Wesleyan Church, whose headquarters are located at Marion, Indiana. I have three fellow clergymen friends, all Canadians and all members of the same denomination, who have parishes in Ohio, Michigan, and Illinois respectively. I know that all of them are licensed by their respective state to conduct weddings.
"I need to know from you, as soon as possible, whether or not I am eligible to conduct a wedding service by myself. I do not currently serve a parish, but I am professor of religion and chairman of the Department of Philosophy and Religion at Asbury College. I have taught here since 1971."
Under the facts given, you are an ordained clergyman in the Wesleyan Church. Thus under KRS 402.050(1)(a), ministers of the gospel of any denomination in regular communion with any religious society are authorized to solemnize marriages in Kentucky. However, no minister shall solemnize marriages until he has obtained a license therefor from the county judge executive of the county in which he resides, or in which he serves as a minister in a place of worship, pursuant to KRS 402.060. See that statute for particulars as to the license and bond. Since you, as a minister, reside in Jessamine County, Kentucky, it is our opinion that you may apply for such license to the county judge executive of Jessamine County.
The federal courts have held that since 1886 the Fourteenth Amendment to the Federal Constitution is not confined to the protection of citizens but protects resident aliens as well. Thus distinctions between aliens and citizens are inherently suspect and are therefore subject to a strict judicial scrutiny, whether or not a fundamental right is impaired. See Graham v. Richardson, 403 U.S. 365, 91 S. Ct. 1848, 29 L. Ed. 2d 534 (1971). The court said in Graham, above, that under traditional equal protection principles, a state retains broad discretion to classify as long as its classification has a reasonable basis. The court wrote that aliens as a class are a prime example of a "discrete and insular" minority for whom such heightened judicial solicitude is appropriate.
Kentucky has imposed some restrictions upon aliens. See, for example, KRS 381.300, providing generally that the real estate of an alien may be escheated to the state at any time after the expiration of eight (8) years after acquiring title thereto. However, we find nothing in KRS Chapter 402 (marriage law) or the Kentucky statutes generally which prohibits an alien minister of the gospel from applying for a license to solemnize marriage in Kentucky. Moreover, the "constitutional guaranty of equality invalidates laws denying to aliens the right to obtain licenses to pursue ordinary callings." 3 Am.Jur.2d, Aliens and Citizens, § 37, p.p. 886-887; and Truax v. Raich, 239 U.S. 33, 60 L. Ed. 131, 36 S. Ct. 7.
CONCLUSION
Under the foregoing analysis and case authority, it is our opinion that you, as a minister of the gospel, as described in KRS 402.050(1)(a), who happens to be an alien residing in Jessamine County, may lawfully apply to the county judge executive of that county for the issuance of a license to solemnize marriages, pursuant to KRS 402.060. Thus armed with such license, you may then conduct marriages in Kentucky by yourself.