On Tue, 16 Mar 2004, Volokh, Eugene wrote: > [snip] > (2) PUNISHING THE CLERGY FOR VIOLATING A VALID LAW: Now the question > is whether the expression of this opinion leaves the clergy open to > punishment for violating a valid law. Tom says yes -- but I don't see > why. There is a valid law that says that New York doesn't recognize > same-sex marriages; but that's not a law that the clergy can violate. > There is also a law that bars people from solemnizing marriages that > aren't recognized in New York, where solemnization is defined as > performing a particular ceremony, a ceremony that consists, as I > understand it, entirely of speech and often of religious practice. But > I don't see how New York can ban such speech and religious practice; it > is *that* law, which bars the clergy from solemnizing the marriage -- > which, as #1 suggests, simply involves saying various words including > expressing the opinion that under The Right Understanding Of The Law As > I See It the marriages are valid -- that is invalid. > [snip]
I have written and still believe that civil marriage itself is an expressive resource, used by private couples, the distribution of which is constrained by the First Amendment. That noted, here is one place where it seems -- and my tentativeness is intentional -- that a "government speech" argument might be apt. As I understand "solemnization," which I have not yet studied extensively, it is something said or done on behalf of the government. Thus, if it's not conduct but speech, it is speech done by the deputies or agents of the government. When people purport to be exercising 'authority vested in [them] by the State of New York,' wouldn't they literally be speaking for the state? If so, then why couldn't the state impose misdemeanor sanctions for misspeaking for the government? Cf. Rust v. Sullivan (holding that government may take steps to make sure its message is not garbled). Now, this would raise at least two big issues for me. The first is whether the facts of what the clergy at issue did/said sufficiently clearly support the government characterization to avoid any unconstitutional chilling of bona fide private (and in this case religious) speech. The second and related point is whether Doug Laycock isn't right that there is something troublesome about such a fusion of governmental and religious authority. I had previously thought that perhaps allowing clergy to perform the government's solemnization function might be justifiable as a form of accommodation, at least loosely speaking. Many people who marry will do so before clergy, and allowing clergy to solemnize thus spares the marrying couple the need to go get a separate solemnization from a government official. We might need to read such statutes with Seeger/Welch broadness to avoid religious favoritism (as I suspect that some marriages are officiated by nongovernmental yet nonreligious private parties). But, even if we did, do prosecutions such as New York's suggest that there is an improper entanglement of religion and government when it comes to "solemnization" of marriages? David B. Cruz Professor of Law University of Southern California Law School Los Angeles, CA 90089-0071 U.S.A. _______________________________________________ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
