To combine two related metaphors -- I'm way out of my depth here, but dredging something up from memory, isn't there a distinction between perlocutionary utterances (as I think they're called) and illocutionary utterances (or something like that). Perlocutionary utterrances, if I recall right, are words like "I promise you" or (said by one person about to become a spouse of another) "I marry you." These words *do* things -- make promises, make marriages (and don't simply have things as consequences, as with words which by their very utterance inflict injury, to quote [from memory] from Chaplinsky). It wouldn't surprise me at all if the First Amendment rules dealing with perlocutionary utterances had to differ from those dealing with illocutionary utterances.
If something like that's right, then we have to figure out how to distinguish between the two kinds of utterances. Again if I recall correctly, the distinction has something to do with the general social understandings of what the words do in certain circumstances. (So, for example, "I promise you" said during a play isn't a perlocutionary utterance.) And if that's right, we'd need some "social" analysis of the understandings people have, on the one hand, when mayors say, "I hereby marry one of you to the other," and, on the other, when ministers say the same words. My intuition, and it's only that (and it may be that something more than a "social" analysis is needed), is that the social understandings are pretty much the same -- so that, finally, whatever the First Amendment rule is as to the mayor's words, the same rule applies to the minister's. ----- Original Message ----- From: "Berg, Thomas C." <[EMAIL PROTECTED]> Date: Wednesday, March 17, 2004 8:49 pm Subject: RE: UU ministers arrested > As a matter of wisdom, I don't like these prosecutions of clergy > much more > than Marty does. We ought always to be concerned when clergy are > prosecutedfor doing core clergy-type things such as performing > marriage- or > marriage-like ceremonies. But whether the prosecutions are > unconstitutionalposes a complicated question, which to me seems > worth discussing as a matter > of intellectual exchange on our list. I won't post much more about > it,since a lot of the issues Eugene raised in the message below > have already > been explored in posts today. Here's one remaining question, however. > > Unless we distinguish somehow between the mayors' and the clergy's > acts,isn't there a problem with saying these acts are simply > speech. If they are > simply speech, then there is absolutely no basis for the widespread > (thoughcertainly not uniform) sense that the mayors are going > outside the law and > that their practice of performing same-sex marriages ought to be > stoppeduntil the constitutionality of the current statutory > exclusion of same-sex > marriages can be decided in the courts. Likewise, if what the > mayors are > doing is merely speech, then the California Supreme Court's > (temporary)order to San Francisco's mayor to stop performing > marriages is a blatant and > plainly invalid prior restraint. Was that even argued in the > Californiacourts? Or did the parties pretty much assume that what > the mayor did was > more than just speech? And if so, how is the mayor different than the > clergy? > > I doubt that this particular question can be answered > satisfactorily by > saying that the mayor is a government employee, as Eugene argued > earlier(below). Even though a government employee's speech can be > regulated more > than a private person's can, my sense is that this does not provide > sufficient justification for prior restraints against government > employees'speech, at least not without exceptional circumstances. > Snepp v. United > States, which upheld a prior restraint against a former CIA > employee who had > signed an agreement authorizing the government to review any book > he planned > to publish, is, it seems to me, the exception that proves the rule. > > Is the mayor different because he has issued licenses -- and that > act, not > the act of solemnizing, is what can constitutionally be prohibited? > But the > fundamental thing that the mayor does with the license is to sign > it, right > -- and isn't signing also simply a form of expression? And if the > clergylikewise sign a legal document, as the story Marty quotes > suggests, then > again what's the difference? Is signing a legal document -- license, > affidavit, whatever -- part of the act of "solemnizing"? > > Tom Berg > University of St. Thomas School of Law (Minnesota) > > > _____ > > From: Volokh, Eugene [EMAIL PROTECTED] > Sent: Tue 3/16/2004 11:06 PM > To: Law & Religion issues for Law Academics > Subject: RE: UU ministers arrested > > > > I appreciate, as always, Tom's thoughtful arguments; but let me > explain why > I at least tentatively disagree. > > (1) MISSTATEMENTS OF FACT. I think that indeed if the clergy are > saying"This is a valid civil marriage," they are not expressing a > fact; they're > expressing an opinion. An analogy: If right after you woke up the > morningafter Election Day 2000, and someone told you "Al Gore is > the new lawfully > elected President-elect," that would likely have been a false > statement of > fact. If someone called you that morning and said "Now that Al > Gore is the > new President-elect, I'd like you to contribute $1000 to a > Democratic Party > event for the inauguration," he would likely have been committing > fraud.But if today someone tells you "Al Gore is the lawfully > elected President," > it's not a false statement of fact about the political system, > preciselybecause everyone knows that it's not true (at least in the > sense that less > controversial statements such as "William Rehnquist is the lawfully > selectedChief Justice" are true). Rather, in context it's a > statement of opinion -- > a judgment about what should be true under The Right Understanding > Of The > Law As I See It, and a statement of defiance of the existing legal > institutions' views. Likewise, I think for the clergy's statements > here. > > (2) PUNISHING THE CLERGY FOR VIOLATING A VALID LAW: Now the > question is > whether the expression of this opinion leaves the clergy open to > punishmentfor 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 > ceremonythat 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 > religiouspractice; it is *that* law, which bars the clergy from > solemnizing the > marriage -- which, as #1 suggests, simply involves saying various > wordsincluding expressing the opinion that under The Right > Understanding Of The > Law As I See It the marriages are valid -- that is invalid. > > > (3) ACT. But, Tom suggests, the difference is that the > solemnization isn't > just speech, but is an act. What justification is there, though, > for taking > something that was literally speech -- the ceremony was entirely > speech(plus perhaps a kiss or two, but I doubt that this makes a > difference) -- > and then treating as not speech under the First Amendment? If the > speechinvolved false statements of fact that people would really be > deceived by, > then that would be punishable speech; but as I mentioned, the > speech here > seems to be, in context, opinion plus some other things that aren't > falsestatements of fact. Nor is it even speech that has the effect > of creating a > legal relationship, since the whole point is that it *doesn't* have > thatlegal effect. So I don't see how the "act" argument works here. > > > (4) FUTURE LIKELY ACTIONS OF THE COUPLE. Tom suggests that > perhaps the > clergy solemnization should be seen as an unprotected act rather than > protected speech because at some time in the future the couples are > likelyto use the ceremony as the basis for future legal claims, > such as attempts > to get Full Faith and Credit Clause recognition for the marriage. > But why > should this matter? Those future actions wouldn't even be illegal > themselves, so it's not even that the clergy are somehow aiding and > abettingfuture illegal behavior: An attempt to get Full Faith and > Credit Clause > recognition for the New York marriage from, say, a New Jersey court > would be > an interesting, though doomed lawsuit; the New Jersey court would be > perfectly capable of recognizing that the marriage wasn't a valid > New York > marriage, even though at the time a clergyman conveyed his opinion > thatunder The Right Understanding Of The Law As He Sees It the > marriages were > valid. No problem, and no reason to treat the clergyman's speech as > anything but speech. > > > (5) WHAT ABOUT THE MAYORS? Finally, to Tom's question about what the > mayors may be punished for: I'm not positive that they could or > should be > punished, but the best theory for punishing them (probably not > criminally)is that they are government officials, and the > government is therefore > entitled to constrain their speech in some measure. (Bond v. > Floyd, of > course, suggests that elected government officials aren't subject > to the > relaxed Pickering level of protection available for ordinary > employees, in > which case perhaps the mayors shouldn't be punished.) But even > though the > clergy do have some minor government power delegated them here, it > seems to > me that this is not nearly enough to justify such a different > standard of > First Amendment protection -- they're still fundamentally private > citizens;and precisely because their actions obviously have no > legal validity under > the existing understanding of state law, they'll be understood as > speakingin their capacity as private citizens, rather than as > agents of the state. > > > Eugene > > Tom Berg wrote: > > > I'm not certain on this question, but I have doubts about > Eugene'sargument that this is simply religious speech or a > religious ritual, > analogous to a ceremony "marrying" a nun to the Church. In the > news reports > I have read, the prosecutors have conceded that they cannot > prosecute clergy > for performing religious ceremonies (nor, I myself would add, for > callingthem "marriages"). The prosecutors have said that the > problem is that the > clergy performed the ceremonies as if they were, and asserted > throughoutthat they were, valid civil marriages. > > > Eugene, do your arguments entail that the mayors of San > Franciscoand New Paltz likewise cannot be constitutionally > prosecuted (or > disciplined, if that's possible) for performing same-sex marriages and > claiming them to be valid civil marriages? They likewise might not be > trying to defraud anyone in any direct sense, and they appear to be > relyingon their interpretation of the respective state > constitutions. And the > distinction that they are government officials while the clergymen > are not > does not have so much force here when the clergy, like the mayors, > play an > official role in a state-sanctioned institution (which, admittedly, > mayprovide further support for Doug's argument that we ought to > separate the > two roles altogether). > > > The clergymen have uttered words, yes, but the words include > (essentially) "this is a valid civil marriage." That is a > misstatement of > fact (if we look at the marriage statute -- I'll consider the state > constitutions in a minute). I am not sure that the absence of an > intent to > defraud anyone is determinative. In libel cases, the First Amendment > standard is simply that the defendant knows that (or recklessly > disregardsthat) the statement is untrue; there is no further > requirement that the > defendant intend to cause harm. The theory is that clear > misstatements of > fact have little or no First Amendment value and we are not worried > aboutany chilling effect when the falsehood is knowing. Likewise, > what is the > First Amendment value in a clergyman stating "this is a legally > valid civil > marriage" when, under current statutory law, it clearly is not? > > > The best answer is that this is the clergyman's > interpretation of > the state constitution and that is a matter of opinion rather than > fact (for > now, until the courts rule on the claim). But that leads, in my > view, into > a different way of looking at the case. Essentially, what the > clergymen(and the mayors) are doing is violating the current, > opposite-sex-only > marriage statute in order to raise the legal question whether the > statuteviolates the state constitution (as well as the moral > question whether it is > just). Within that framework, isn't the general rule that if the > law is > unconstitutional, then the violator can't be punished for violating > it -- > but if the law is constitutional, the violator can be punished? So > whetherthe clergymen's acts are protected turns on whether the current > opposite-sex-only marriage law is unconstitutional -- whereas under > Eugene'sargument, the clergymen are protected even if the current > marriage law > ultimately is deemed constitutional. > > > Another way to put this is that performing these marriages > is not > merely speech, but is an act -- an act that is part and parcel of a > challenge to the current marriage laws. While the clergymen may > not intend > to defraud anyone directly, their action in performing same-sex > marriages in > their official capacity, marriages that they assert to be civilly > valid, is > part of an overall effort to make such marriages civilly valid. It > is quite > likely that some couples in these ceremonies will take the > documents signed > by the clergy to other states and claim valid civil marriages in those > states because of full faith and credit (hasn't this already > happened with > some of the San Francisco marriages?). Or they will claim spousal > benefitsfrom the state or from private employers. These ceremonies > by the clergy > therefore are quite likely to have effects beyond those that a purely > religious ritual would have; it's obviously quite different from a > ceremony"marrying" a nun to the Church. > > > Under these circumstances, I'm not convinced that what > these clergy > have done is simply speech or a religious ritual and therefore is > protectedeven if the current marriage laws are ultimately deemed > constitutional. > > I have a similar response to Alan's argument. Yes, both > the clergy > and some same-sex couples (the religiously motivated ones) have > legal claims > that the state's refusal to recognize these marriages as civilly valid > violates a state free exercise or RFRA standard. But they can > raise those > challenges by refraining from performing the marriages as civil > marriages,and then suing to declare the current marriage statutes > unconstitutional or > violative of a RFRA. It does not follow that the clergy should be > able to > perform them as valid civil marriages, make that assertion > throughout as > part of a challenge to the current marriage laws, and then claim > that they > are constitutionally protected in doing this even if the current > marriagelaws end up being declared constitutional. > > > >
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