In Tennessee, can a county mayor, county clerk, or municipal mayor charge a fee for officiating a wedding, or are they limited to accepting voluntary gratuities?

Subject

Legality of Compensation for Performing Marriages, February 22, 2011

Plain-English summary

A state senator asked whether Tennessee elected officials who officiate weddings can charge for the service. The AG drew a line between two practices that look superficially similar but are legally different: accepting a gratuity (allowed) and charging a fee (not allowed).

Tenn. Code Ann. § 36-3-301(c) provides that "[a]ny gratuity received by a county mayor, county clerk or municipal mayor for the solemnization of a marriage, whether performed during or after such person's regular working hours, shall be retained by such person as personal remuneration for such services, in addition to any other sources of compensation such person might receive, and such gratuity shall not be paid into the county general fund or the treasury of such municipality."

The AG read this statute carefully:

1. The General Assembly's deliberate choice of the word "gratuity" matters. A gratuity is "something given voluntarily or beyond obligation, usually in return for or in anticipation of some service." Webster's Ninth New Collegiate Dictionary. By using that specific term, the legislature signaled that officials may receive voluntarily-given money for officiating marriages.

2. To avoid an absurd or incongruous result, the AG read § 36-3-301(c) as also permitting officials to discuss, request, or solicit a gratuity. A purely passive "I cannot mention it" rule would conflict with normal practical reality, and would make the statute hard to operate.

3. But § 36-3-301(c) does not expressly authorize officials to "charge" or "demand" a fee for performing marriages. And Tenn. Code Ann. § 8-21-101 provides the controlling background rule: public officers are not allowed to "demand or receive fees or other compensation for any service further than is expressly provided by law." Because no statute expressly authorizes county mayors, county clerks, or municipal mayors to charge for officiating marriages, they cannot do so.

The practical difference is the difference between asking for a tip and naming a price. Officials may say something like "There's no required fee, but a gratuity is appreciated" or accept a payment offered after the ceremony. They may not say "The fee is $100" or refuse to officiate unless paid.

A footnote in the opinion narrows the scope: this opinion addresses only the officials specifically named in § 36-3-301(c). It does not speak to other officials who are statutorily authorized to perform marriages (judges, ministers, etc.), whose compensation rules may differ.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What's the practical difference between a "gratuity" and a "fee"?

Voluntariness. A gratuity is given by the couple without obligation; the official cannot condition the ceremony on it or require a specific amount. A fee is a mandatory price for the service, typically set in advance. The same dollar amount can be either, depending on how the transaction works. If the couple decides what (if anything) to give and the official accepts it, that's a gratuity. If the official names a price and refuses to officiate without it, that's a fee.

Can the official suggest an amount?

The AG read § 36-3-301(c) as allowing officials to "request or solicit" a gratuity, on the rationale that otherwise the statute would produce absurd results. Suggesting a customary amount is closer to a request than a charge, as long as the couple is genuinely free to give less, or nothing. The line the AG drew is between solicitation (allowed) and demand (not allowed).

Can the official keep the gratuity personally?

Yes, by the statute's plain terms. Tenn. Code Ann. § 36-3-301(c) provides that the gratuity "shall be retained by such person as personal remuneration for such services, in addition to any other sources of compensation such person might receive, and such gratuity shall not be paid into the county general fund or the treasury of such municipality." This is one of the carve-outs from the general rule that public officers' fees usually go to the treasury.

Does it matter whether the ceremony is during business hours?

No. The statute explicitly covers ceremonies "performed during or after such person's regular working hours." Whether the ceremony happens at noon on a workday or on a Saturday evening, the same rule applies.

What about a judge officiating a wedding?

The opinion's footnote clarifies that it addresses only the officials named in § 36-3-301(c) (county mayors, county clerks, municipal mayors). Compensation rules for other officials authorized to perform marriage ceremonies, including judges, may differ. A separate analysis would be required.

What's the consequence if an official charges a mandatory fee anyway?

The AG opinion identifies the legal rule but does not address remedies. As a matter of general public-officer law in Tennessee, demanding unauthorized fees can give rise to administrative discipline, civil liability for restitution, and (in some cases) criminal exposure under public-corruption or extortion statutes. A specific situation would require its own analysis.

Background and statutory framework

Two statutes interact:

1. Tenn. Code Ann. § 36-3-301(c) specifically authorizes county mayors, county clerks, and municipal mayors to receive gratuities for marriage solemnization, to keep them as personal remuneration, and to receive them whether the ceremony was performed during or after working hours. The statute's text:

Any gratuity received by a county mayor, county clerk or municipal mayor for the solemnization of a marriage, whether performed during or after such person's regular working hours, shall be retained by such person as personal remuneration for such services, in addition to any other sources of compensation such person might receive, and such gratuity shall not be paid into the county general fund or the treasury of such municipality.

2. Tenn. Code Ann. § 8-21-101 is the controlling background rule: public officers are not allowed to "demand or receive fees or other compensation for any service further than is expressly provided by law." This default rule bars unauthorized charging for public services.

The AG applied standard Tennessee statutory-construction principles:

• Courts must "ascertain and give effect to the legislative intent without unduly restricting or expanding a statute's coverage beyond its intended scope." Wilson v. Johnson County, 879 S.W.2d 807, 809 (Tenn. 1994).
• "When the statute is unambiguous, legislative intent is determined from the plain and ordinary meaning of the language used in the statute." Freeman v. Marco Transp. Co., 27 S.W.3d 909, 911 (Tenn. 2000).
• Statutory language is "read in the context of the entire statute, without any forced or subtle construction which would extend or limit its meaning." National Gas Distribs. v. State, 804 S.W.2d 66, 67 (Tenn. 1991).
• A statute should be construed so that "no part will be inoperative, superfluous, void or insignificant." State v. Northcutt, 568 S.W.2d 636, 637-38 (Tenn. 1978).
• A statute should not be construed to produce an absurd or incongruous result. Barnett v. Barnett, 27 S.W.3d 904, 908 (Tenn. 2000).

The conclusion follows from those principles. The legislature used the word "gratuity," a term with a specific meaning that points to voluntary payment, rather than "fee" or "compensation." That deliberate word choice carries weight. To avoid an absurd or incongruous result (which would forbid even informational discussions about whether a gratuity was appropriate), the AG read the statute as also permitting requests or solicitations. But the AG would not stretch the statute to authorize the very thing the legislature avoided saying: charging or demanding a fee. The default rule of § 8-21-101 thus controls for that specific question.

Citations

• Tenn. Code Ann. § 36-3-301(c) (gratuity authorization)
• Tenn. Code Ann. § 8-21-101 (default rule against demanding unauthorized fees)
• Wilson v. Johnson County, 879 S.W.2d 807 (Tenn. 1994)
• Freeman v. Marco Transp. Co., 27 S.W.3d 909 (Tenn. 2000)
• National Gas Distribs. v. State, 804 S.W.2d 66 (Tenn. 1991)
• State v. Northcutt, 568 S.W.2d 636 (Tenn. 1978)
• Barnett v. Barnett, 27 S.W.3d 904 (Tenn. 2000)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2011/op11-018.pdf

Original opinion text

Tenn. Code Ann. § 36-3-301(c): Legality of Compensation for Performing Marriages

QUESTION

Under Tenn. Code Ann. § 36-3-301(c), is it lawful for an elected official (county mayor, county clerk, or municipal mayor) to charge, request, or otherwise solicit money or compensation for the performance of a marriage during or after office hours?

OPINION

While it is lawful under Tenn. Code Ann. § 36-3-301(c) for county mayors, county clerks, and municipal mayors to accept, request or solicit gratuities for performing wedding ceremonies, it is not lawful for such officials to charge a fee or demand compensation for performing wedding ceremonies.¹

ANALYSIS

As a general rule, elected officials must always guard and protect the interest of the public and may not use their public office directly or indirectly for a personal profit. 67 C.J.S. Officers § 244. Under the provisions of Tenn. Code Ann. § 8-21-101, public officers are not allowed to "demand or receive fees or other compensation for any service further than is expressly provided by law."

You have asked whether Tenn. Code Ann. § 36-3-301(c) authorizes county mayors, county clerks, and municipal mayors to charge, request, or otherwise solicit compensation for the performance of a marriage ceremony. This statute provides:

Any gratuity received by a county mayor, county clerk or municipal mayor for the solemnization of a marriage, whether performed during or after such person's regular working hours, shall be retained by such person as personal remuneration for such services, in addition to any other sources of compensation such person might receive, and such gratuity shall not be paid into the county general fund or the treasury of such municipality.

Tenn. Code Ann. § 36-3-301(c).

In construing statutes, courts must "ascertain and give effect to the legislative intent without unduly restricting or expanding a statute's coverage beyond its intended scope." Wilson v. Johnson County, 879 S.W.2d 807, 809 (Tenn. 1994). When the statute is unambiguous, legislative intent is determined from the plain and ordinary meaning of the language used in the statute. Freeman v. Marco Transp. Co., 27 S.W.3d 909, 911 (Tenn. 2000). The statutory language must be "read in the context of the entire statute, without any forced or subtle construction which would extend or limit its meaning." National Gas Distribs. v. State, 804 S.W.2d 66, 67 (Tenn. 1991). A statute should be construed so that "no part will be inoperative, superfluous, void or insignificant." State v. Northcutt, 568 S.W.2d 636, 637-38 (Tenn. 1978). In addition, a statute should not be construed to produce an absurd or incongruous result. Barnett v. Barnett, 27 S.W.3d 904, 908 (Tenn. 2000).

The term "gratuity" has been defined as "something given voluntarily or beyond obligation, usually in return for or in anticipation of some service." Webster's Ninth New Collegiate Dictionary. By employing the term "gratuity" in referring to any remuneration received for the performance of marriage services, the General Assembly has expressed its intent to allow county mayors, county clerks, and municipal mayors to receive moneys voluntarily given. As a practical matter, this may involve a discussion, request or solicitation of such gratuity. Accordingly, in order to avoid an absurd or incongruous result, it is our opinion that Tenn. Code Ann. § 36-3-301(c) should be construed to allow a request or solicitation of a gratuity by a county mayor, county clerk, or municipal mayor for performing wedding ceremonies.

The General Assembly did not, however, expressly authorize such officials to charge or demand a fee for performing marriage ceremonies. Therefore, it is our opinion that county mayors, county clerks, and municipal mayors are precluded by Tenn. Code Ann. § 8-21-101 from charging a fee or demanding money for performing wedding ceremonies.

ROBERT E. COOPER, JR.
Attorney General and Reporter

GINA J. BARHAM
Deputy Attorney General

DIANNE STAMEY DYCUS
Deputy Attorney General

Requested by:
Honorable Charlotte Burks
State Senator
Suite 304, War Memorial Building
Nashville, TN 37243