Oh, I agree that the law doesn't categorically exempt purely religious ceremonies. The prohibition in section 51-7 would apply to such ceremonies, but only if a license is "required by law" for such ceremonies. But I don't see how section 51-7 makes it a crime to celebrate a religious ceremony connected to a marriage for which a license is neither required nor even allowed. Or am I missing something?
Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Friday, May 09, 2014 3:17 PM To: 'Law & Religion issues for Law Academics' Subject: RE: States prohibiting churches from sanctioning same-sex marriage The principal source of ambiguity is that ยง51-7 goes on to provide an exception for couples who are married by a judge and later have a religious ceremony as well. Hard to see why that exception was needed if no one thought the law reached purely religious ceremonies. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Friday, May 09, 2014 6:11 PM To: Law & Religion issues for Law Academics Subject: RE: States prohibiting churches from sanctioning same-sex marriage Well, I'd be happy to see a declaratory judgment making clear that the statutes don't apply here. But that seems to me to be pretty certain from the text of the statute; section 51-7 provides, "Every minister, officer, or any other person authorized to solemnize a marriage under the laws of this State, who marries any couple without a license being first delivered to that person, as required by law, or after the expiration of such license, or who fails to return such license to the register of deeds within 10 days after any marriage celebrated by virtue thereof, with the certificate appended thereto duly filled up and signed, shall forfeit and pay two hundred dollars ($200.00) to any person who sues therefore, and shall also be guilty of a Class 1 misdemeanor." In a same-sex marriage, there is no license required by law to be delivered to the person; indeed, no license is legally possible. So I don't see any basis for invalidating the statute on free speech or free exercise grounds as to same-sex marriages, though, as I said, it would be just fine to make clear that the statute indeed doesn't bar such ceremonies. From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Friday, May 09, 2014 12:47 PM To: Law Religion & Law List Subject: Re: States prohibiting churches from sanctioning same-sex marriage I don't find that analysis persuasive in the sense that ministers would properly fear prosecution under that statute for performing a solemnization ceremony for same sex couples - they would, as I read the statute, violate two aspects of it: peforming a solemnization ceremony between same sex couples AND doing so without a state-issued marriage license to perform that ceremony. To avoid the constitutional problem, the NC court could interpret it as Will Esser proposes, but it could also find the statute to be unconsitutionally vague or ambiguous as to the particular issue of performing a solemnization ceremony for a same sex couple. Given that the suit is in federal court and no state court has definitively ruled that Esser's interpretation is the correct one, it seems that the federal court might well interpret it as unconstitutionally chilling free exercise (and free speech). Steve -- Prof. Steven D. Jamar vox: 202-806-8017 Director of International Programs, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://sdjlaw.org "I do not at all resent criticism, even when, for the sake of emphasis, it for a time parts company with reality." Winston Churchill, speech to the House of Commons, 1941 On May 9, 2014, at 2:13 PM, Volokh, Eugene <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote: I agree entirely, but which particular statutory scheme is under discussion? If it's the North Carolina one, a recent post argued, I think, persuasively, that North Carolina statutes don't actually prohibit religious same-sex marriage ceremonies. Eugene From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Friday, May 09, 2014 10:36 AM To: Law & Religion issues for Law Academics Subject: States prohibiting churches from sanctioning same-sex marriage Isn't this an easy case of free exercise violation? Assuming that states do not need to recognize same sex marriages as a matter of federal equal protection law, and do not need recognize church-recognized same sex marriages as vaild for state purposes (though the state would still recognize church authority to perform opposite-sex marriage), can the state ban a church from performing a religious marriage ceremony? -- Prof. Steven D. Jamar vox: 202-806-8017 Director of International Programs, Institute for Intellectual Property and Social Justice http://iipsj.org<http://iipsj.org/> Howard University School of Law fax: 202-806-8567 http://sdjlaw.org<http://sdjlaw.org/> "Education: the path from cocky ignorance to miserable uncertainty." 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