I don’t know that I have much
to add to what Doug has said, and I certainly agree with all of it. Having said that, I would like to point out
that the countries that seem to have been able to accept S-S marriages (The
Netherlands and Denmark, I believe) have all kept religious and civil marriages separate. Put in the simplest terms, the crux of the problem
presents itself every time a clergyperson says “by the authority vested
in me by the state of X, I hereby pronounce you …..”
-----Original Message-----
From: Douglas Laycock
[mailto:[EMAIL PROTECTED]
Sent: Tuesday, March 16, 2004 1:48
PM
To: Law & Religion issues for
Law Academics
Subject: Re: UU ministers arrested
The
New York Times story this morning quotes the prosecutor as saying that he
recognized their right to perform a purely religious ceremony; the offense was
that they had purported to exercise the authority vested in them by the State
of New York to perform a legal ceremony. I don't know what evidence
supports that -- whether they said something to that effect, or whether he is
acting on a presumption about their intent.
Assuming he
adheres to that distinction and can prove his case consistent with it (and
without a presumption of illegal intent), then I don't think there is a
Religion Clause problem with the prosecution.
I continue to
believe that the Religion Clause problem is with the underlying structure of
marriage law, that vests clergy with legal authority to perform marriages and
that thoroughly commingles and confuses the distinction between marriage as a
religious relationship (or sacrament, in some churches) and marriage as a legal
relationship. This New Paltz prosecution would be unimaginable without
that underlying joinder of the powers of church and state.
On the other end
of the political spectrum, gay leaders in San Francisco are quoted saying that
legal recognition and the issuance of marriage licenses will make it hard for
conservative churches to resist performing gay marriages. There is no
reason that should be true; it is a bet on the pervasive confusion of the two
relationships.
When I first
said it is unconstitutional for church and state to jointly administer a
combined institution of religious and legal marriage, the point seemed pretty
theoretical and ivory tower. But the further the controversy over
same-sex marriage proceeds, the more practical consequences arise from that
underlying unconstitutionality. There is no solution until we separate
the religious relationship from the legal relationship.
At 12:11 PM 3/16/2004 -0500, Steven Jamar wrote:
Two Unitarian Universalist Ministers were arrested in
NY for performing same-sex marriages under the power granted them by the state,
not just as religious unions. Of course the typical faultlines are
exposed - including claims of violation of separation of church and
state. But surely that cannot be true - this is a simple case of a
prosecutor interpreting the State and Federal Constitutions to permit this sort
of gender discrimination in marriage - and so enforcing the law as he
interprets it.
What always strikes me as curious in these are the cries of "upholding the
law" - as if the constitutions were not law, and indeed superior law at
that.
Anyway does anyone see an establishment problem with these prosecutions that I
am missing?
washington
post article is at
http://www.washingtonpost.com/wp-dyn/articles/A61436-2004Mar15.html
Steve
--
Prof. Steven D.
Jamar
vox: 202-806-8017
Howard University School of
Law
fax: 202-806-8567
2900 Van Ness Street
NW
mailto:[EMAIL PROTECTED]
Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar/
A word is dead
When it is said,
Some say.
I say it just
Begins to live
That day.
Emily Dickinson 1872
<br>
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Douglas Laycock
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