I think that the response to Tom's argument -- "If they are simply speech, then there
is absolutely no basis for the widespread (though certainly not uniform) sense that
the mayors are going outside the law and that their practice of performing same-sex
marriages ought to be stopped until the constitutionality of the current statutory
exclusion of same-sex marriages can be decided in the courts" -- is two-fold.
First, as I've argued, the clergy's statements, express and implied, in conducting the
ceremony aren't "I have the legal power to do this," but "If the law were just, I
would have the legal power to do this." By flouting the law and claiming power that
everyone knows they don't have, they are simply expressing an opinion about the
injustice of being denied this power. The flouting of the law is thus protected by
the First Amendment.
Nonetheless, I suspect that many people think that actual government officials (as
opposed to clergy, public university professors, and others who may have some
delegated government power but who aren't really seen as government officials)
shouldn't flout the law even when the First Amendment allows them to do so: They
should express respect for the law even when they disagree with it, and flouting it
this way is disrespectful. What's more, perhaps such disrespect is indeed
justification enough even for an injunction against the official's speech -- despite
Bond v. Floyd, I'm not sure that the rules related to a government official's speech
are fully well-defined. (Cf. Kennedy's hint in Republican Party v. White, the
judicial speech case from 2002, that these rules might perhaps sometimes be different
from the rules applicable to a private citizen.)
Second, as I've argued before, I think the ministers' actions are constitutionally
protected precisely because everyone knows that same-sex marriages aren't legally
recognized. When that's so, the ministers' saying "By the authority vested in me by
the state of New York, I now pronounce you married" -- if that's what they say, or if
their conduct is tantamount to saying -- will be understood by everyone an expression
of opinion about what the law should be, not what it is. All that's going on then is
(1) constitutionally protected expression of opinion, (2) a religious ceremony, and
(3) two people undertaking a moral but legally unenforceable obligation, which should
be protected as an exercise of the right of intimate association (and in any case
isn't, according to the New York prosecutor, itself the problem, because the moral
obligation is just as present in religious ceremonies, which the prosecutor stresses
he isn't going after).
But the widespread belief to which Tom refers might rest in part on the assumption
that a mayor's conduct wouldn't be quite so clearly lacking in effect on government
action. Sure, it can't make the marriage legal; but it might make city employees
think twice about whether they can just ignore a marriage conducted by the mayor when
deciding whether to accept some filed papers, or whether to give insurance benefits to
a city employee's putative spouse, or whether to give the putative spouse the normal
spousal visiting privileges at a city hospital. The employee might be fairly
confident that the marriage is illegal -- but be reluctant to ignore his boss's own
actions. This is less true of marriages conducted by city clerks, but even so a
low-level employee may be reluctant to reject the actions of a high-level employee.
I can't claim that these are remotely open-and-shut arguments; perhaps the widespread
assumption is incorrect, and judges should simply issue opinions that make clear that
same-sex marriages are invalid, and that when a mayor is conducting them, he's just
conducting an unofficial ceremony (like a purely religious ceremony, though one that
may not have a religious component but instead be merely morally and personally
obligatory on the parties rather than also being religiously obligatory). But if the
assumption is correct, I think it's because the mayor is really different from the
clergy in these respects, not because the clergy should be equally restrictable (or
even enjoinable).
Eugene
-----Original Message-----
From: Berg, Thomas C. [mailto:[EMAIL PROTECTED]
Sent: Wed 3/17/2004 8:49 PM
To: Law & Religion issues for Law Academics
Cc:
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 prosecuted for doing
core clergy-type things such as performing marriage- or marriage-like ceremonies. But
whether the prosecutions are unconstitutional poses 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 (though certainly not uniform)
sense that the mayors are going outside the law and that their practice of performing
same-sex marriages ought to be stopped until 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 California courts?
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 clergy likewise 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)
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