RE: UU ministers arrested

[Newsom Michael]

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 

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Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
512-232-1341
(voice)
512-471-6988 (fax)
[EMAIL PROTECTED]






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RE: RE: UU ministers arrested

[Volokh, Eugene]

Well, I'm not sure that the philosophy of language distinction between those 
utterances is necessarily always helpful for First Amendment purposes.  But I agree 
that indeed the parties to the marriage are making a promise, and not just a 
statement.  Under some circumstances, a promise might in fact be punished (consider a 
promise, even not a legally enforceable one, to commit a crime together with others, 
or a promise to fix prices).
 
But I'm pretty sure that this isn't one of those circumstances.  The parties' "I do"'s 
in a same-sex marriage are expressions of (1) love, (2) the undertaking of a moral 
obligation to love and cherish till death do us part, and (3) the undertaking of a 
religious obligation.  (There's no undertaking of a legal obligation because the 
marriage isn't legally recognized.)  The law can't go after the expression of love, 
which is indeed protected by the First Amendment.  It can't go after the undertaking 
of the religious obligation.  Mark is right that I omitted in my earlier posts the 
undertaking of a moral obligation -- but surely such an undertaking would itself not 
be punishable, presumably because of the right to intimate association.  (The right 
may not give one a right to have one's association be given legal recognition, but 
surely intimate association rights mean that the government can't stop close friends 
from undertaking a moral obligation to help each other.)  Moreover, it's clear that in 
this situation the prosecutors *aren't* trying to go after the undertaking of the 
moral obligation -- after all, they insist that they'd have no beef with a purely 
religious marriage, which would also contain expressions of (1), (2), and (3).  
 
On top of that, the conducting of such a marriage by a minister who characterizes it 
as a valid civil marriage also may involve (4) the use of the trappings of civil 
marriage, including a claim that the marriage is valid.  But as I've argued, this item 
4 is indeed speech -- and not of the promise variety -- and speech that in context is 
clearly an expression of opinion, not of fact.  (The opinion is "This marriage ought 
to be recognized by law," though it's expressed as the obviously incorrect "This 
marriage is recognized by law."  Law professors know this locution, which is quite 
close -- though not identical -- to what appears whenever someone says "The Equal 
Protection Clause protects X," when they really mean "The Equal Protection Clause 
ought to be understood as protecting X.")
 
So it seems to me that all the components of the solemnization itself are either 
protected speech, the acceptance of a religious obligation, or (as Mark's post made me 
focus on, which I much appreciate) the acceptance of a moral obligation, which is 
protected by the right of intimate association.  The only thing that might be 
punishable in all this is the signing of an affidavit, which may in fact be a false 
statement of fact -- but isn't part of the solemnization under New York law.
 
I'll try to respond tomorrow about how the mayor's solemnization might or might not be 
different from the clergy's (again, setting aside any signing of an affidavit).  But 
it seems to me that the clergy's solemnization, in this context, are constitutionally 
protected.
 
Eugene

-Original Message- 
From: Mark Tushnet [mailto:[EMAIL PROTECTED] 
Sent: Wed 3/17/2004 9:53 PM 
To: Law & Religion issues for Law Academics 
Cc: 
Subject: Re: RE: UU ministers arrested



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.  (

Re: RE: UU ministers arrested

[Mark Tushnet]

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 ac

RE: UU ministers arrested

[Berg, Thomas C.]

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)
 

  _  

From: Volokh, Eugene [mailto:[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 morning
after 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, precisely
because everyone knows that it's not true (at least in the sense that less
controversial statements such as "William Rehnquist is the lawfully selected
Chief 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 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
practi

RE: UU ministers arrested

[Volokh, Eugene]

Title: Message



    Well, I agree with Marty that signing 
affidavits might pose a different problem, because those affidavits are more 
likely to be deceptive (for the reasons I mentioned before).  But what 
troubles me is that the prosecution isn't for some false affidavit prohibition; 
it's for illegal solemnization.  Signing an affidavit is not, as I read the 
statutes, an aspect of solemnization -- solemnization covers just conducting the 
ceremony.  Or am I mistaken on that?
 
    Eugene

  
  -Original Message-From: Marty Lederman 
  [mailto:[EMAIL PROTECTED] Sent: Wednesday, March 17, 2004 
  7:17 AMTo: Law & Religion issues for Law 
  AcademicsSubject: Re: UU ministers arrested
  I do not mean to be suggesting, in the slightest, 
  any sympathy for this silly and outrageous criminal prosecution, but the CNN 
  story suggests at least two grounds that might alleviate some of the 
  constitutional problems that Eugene has raised with respect to 
  the criminal charges.  The story relates that:
   
  (i) "Sangrey and Greenleaf signed affidavits for 
  the couples they married and said they considered the ceremonies civil and 
  legally binding."
   
  and
  (ii) "Williams said he was compelled to prosecute Greenleaf and Sangrey 
  because they 'publicly proclaimed their intent to perform civil marriages 
  under the authority invested in them by New York State law, rather than 
  performing purely religious ceremonies.'"
  If these ministers have signed civil-law afffidavits, or licenses, that in 
  the ordinary course are to be used by couples as verification of marriage (for 
  purposes of, e.g., obtaining benefits, court proceedings, etc.), and 
  if the marriages turn out to be invalid, then the ministers' formal 
  signatures on those documents (rather than their participation in the 
  ceremony, as such) might be said to be a means of abetting fraud, in which 
  case there is no serious Free Speech problem.
  And if they are "publicly" holding themsleves out to be in the business of 
  performing civil same-sex marriages "under the authority invested in them by 
  New York State law," and if it turns out that they have no such 
  authority (again, a big "if"), then in theory they could be penalized for 
  false and misleading advertising.
  Of course, we don't really know from these Washington Post and CNN stories 
  what the true "facts" of the case are, or what the factual predicate 
  might be for the prosecution.  Perhaps the criminal charges are based on 
  the ceremonial proceedings, in which case Eugene has cause to be 
  concerned.  Perhaps not.  All of which goes to 
  demonstrate, as is so frequently the case on this list, that perhaps it would 
  behoove us to find out more details about the facts and the law before we 
  spend a lot of time and energy debating the constitutional question.
   
  
- Original Message - 
From: 
Steven 
Jamar 
To: Law & Religion issues for Law 
Academics 
Sent: Wednesday, March 17, 2004 9:46 
AM
Subject: Re: UU ministers 
arrested
CNN's account provides some more detailhttp://www.cnn.com/2004/LAW/03/16/gay.marriage.ny/index.htmlSteve-- 
Prof. Steven D. Jamar vox: 202-806-8017Howard University School of 
Law fax: 202-806-85672900 Van Ness Street NW mailto:[EMAIL PROTECTED]Washington, 
DC 20008 http://www.law.howard.edu/faculty/pages/jamar/"If 
a man empties his purse into his head, no man can take it away from him. An 
investment in knowledge always pays the best interest."Benjamin 
Franklin



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RE: UU ministers arrested

[Eastman, John]

The other way to look at this, of course, is to realize that the strict
separationist view of the Establishment Clause--the only view that makes
this collaboration constitutionally problematic--is of relatively recent
vintage and not in accord with the original understanding of the
Establishment Clause.  Indeed, the fact that ministers being delegated
the state's authority to perform civil marriage ceremonies is a near
universal and long-standing practice is pretty good evidence that a
non-preferential view of the Establishment Clause is much more in line
with the original understanding.

John Eastman

-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock
Sent: Wednesday, March 17, 2004 8:52 AM
To: Law & Religion issues for Law Academics
Subject: RE: UU ministers arrested

 The issues Chris talks about are real.  I once had clients in 
Texas who wanted a friend to officiate at their wedding.  No remotely 
plausible claim that she was a judge or a clergywoman.  But Texas still
has 
common law marriage, and you can register a common law marriage with the

state.  I made sure they understood that the friend officiating was just

for show, that they would be legally married by their own public
consent, 
and they would really be married, fully subject to the divorce courts if

they ever wanted to split.  It was a good solution, but not available in

many states any more.

 But these problems of delegation of state authority, and of 
nondiscriminatory delegation, are secondary in my view.  The fundamental

problem is that the unification of religious marriage and legal marriage

forces us to have a single definition of marriage, and then to fight
over 
what the definition ought to be.  The reason we need to clearly separate

legal marriage from religious marriage (better yet, civil unions (legal)

from marriage (religious)) is so each state can make its own rules about

civil unions, and each religion can make its own rules about marriage,
and 
we don't have to fight intense political battles over a single
definition 
in the face of fundamental disagreement.


>   There would be no trouble here if the government delegated
its 
> authority broadly to everyone that wanted to marry two people and 
> clergymen were included like everybody else.  But that wouldn't be a
real 
> fusion of governmental and religious authority.  It would just be a 
> general delegation of power -- like the power to contract.
>
>   The real problem here is that New York does not delegate its

> power to marry broadly; it gives it *only* to clergymen and certain 
> public officials -- not the general public.  See N.Y. Domestic
Relations 
> Law sec. 11 (explaining that "[n]o marriage shall be valid unless 
> solemnized by either: (1) a clergyman or minister of any religion . .
. 
> (2) a mayor . . . (3) a judge . .  [etc.]").  That's the problem --
this 
> is a special delegation of public authority to religious groups a la 
> Larkin v. Grendel's Den, Inc., 459 U.S. 116 (1982).  I dig Seeger and 
> Welch, but these sorts of statutes usually cannot even plausibly be 
> construed that way; Sec. 11 has not even been read to apply to all 
> religions, much less nonreligious people.  See Ravenal v. Ravenal, 338

> N.Y.S.2d 324 (N.Y. Sup. 1972) (holding that a minister of the
Universal 
> Life Church was not a clergyman for purposes of the statute); Rubino
v. 
> City of New York, 480 N.Y.S.2d 971 (N.Y. Sup. 1984) (same).  Of
course, 
> other states with similar statutes consider ULC to be a religion for 
> purposes of making a marriage legitimate, see Matter of Last Will and 
> Testament of Blackwell, 531 So.2d 1193 (Miss. 1988) (holding that a
ULC 
> minister did have power to marry couples in Mississippi under
Mississippi 
> law, but noting that New York, North Carolina, and Virginia all did
not 
> permit such things under their statutes).  So the moral is if you are
a 
> ULC minister trying to make a living solemnizing marriages, go to 
> Mississippi.  This is all very entanglement to me.
>
>Chris
>
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Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
 512-232-1341 (voice)
 512-471-6988 (fax)
 [EMAIL PROTECTED]

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RE: UU ministers arrested

[Douglas Laycock]

The issues Chris talks about are real.  I once had clients in 
Texas who wanted a friend to officiate at their wedding.  No remotely 
plausible claim that she was a judge or a clergywoman.  But Texas still has 
common law marriage, and you can register a common law marriage with the 
state.  I made sure they understood that the friend officiating was just 
for show, that they would be legally married by their own public consent, 
and they would really be married, fully subject to the divorce courts if 
they ever wanted to split.  It was a good solution, but not available in 
many states any more.

But these problems of delegation of state authority, and of 
nondiscriminatory delegation, are secondary in my view.  The fundamental 
problem is that the unification of religious marriage and legal marriage 
forces us to have a single definition of marriage, and then to fight over 
what the definition ought to be.  The reason we need to clearly separate 
legal marriage from religious marriage (better yet, civil unions (legal) 
from marriage (religious)) is so each state can make its own rules about 
civil unions, and each religion can make its own rules about marriage, and 
we don't have to fight intense political battles over a single definition 
in the face of fundamental disagreement.


  There would be no trouble here if the government delegated its 
authority broadly to everyone that wanted to marry two people and 
clergymen were included like everybody else.  But that wouldn't be a real 
fusion of governmental and religious authority.  It would just be a 
general delegation of power -- like the power to contract.

  The real problem here is that New York does not delegate its 
power to marry broadly; it gives it *only* to clergymen and certain 
public officials -- not the general public.  See N.Y. Domestic Relations 
Law sec. 11 (explaining that "[n]o marriage shall be valid unless 
solemnized by either: (1) a clergyman or minister of any religion . . . 
(2) a mayor . . . (3) a judge . .  [etc.]").  That's the problem -- this 
is a special delegation of public authority to religious groups a la 
Larkin v. Grendel's Den, Inc., 459 U.S. 116 (1982).  I dig Seeger and 
Welch, but these sorts of statutes usually cannot even plausibly be 
construed that way; Sec. 11 has not even been read to apply to all 
religions, much less nonreligious people.  See Ravenal v. Ravenal, 338 
N.Y.S.2d 324 (N.Y. Sup. 1972) (holding that a minister of the Universal 
Life Church was not a clergyman for purposes of the statute); Rubino v. 
City of New York, 480 N.Y.S.2d 971 (N.Y. Sup. 1984) (same).  Of course, 
other states with similar statutes consider ULC to be a religion for 
purposes of making a marriage legitimate, see Matter of Last Will and 
Testament of Blackwell, 531 So.2d 1193 (Miss. 1988) (holding that a ULC 
minister did have power to marry couples in Mississippi under Mississippi 
law, but noting that New York, North Carolina, and Virginia all did not 
permit such things under their statutes).  So the moral is if you are a 
ULC minister trying to make a living solemnizing marriages, go to 
Mississippi.  This is all very entanglement to me.

   Chris

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Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
512-232-1341 (voice)
512-471-6988 (fax)
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Re: UU ministers arrested

[David E. Guinn]

I think I agree with Doug that there is some merit in separating the
religious and legal aspects of the marriage relationship.  However, it seems
to me that there are two separate components of the marriage process: the
"contractual" and the solemnization.  I find that idea that the state could
or should demand a secular solemnization as the exclusive means to
consumating the legal requirement to form the contractual relationship very
troubling.  Soleminzation is nothing more then a certain proscribed ritual
layered on top of the documentary requirements of the marriage license
process.  Why mandate that the ritual be conducted solely according to a
secularized version of religion rather than providing couples with an option
to solemnize their wedding according to the ritual most meaningful for them?
So long as couples have an option to undergo a secular ritual - why favor
the one over the other?

David


- Original Message - 
From: "David Cruz" <[EMAIL PROTECTED]>
To: "Law & Religion issues for Law Academics" <[EMAIL PROTECTED]>
Sent: Tuesday, March 16, 2004 11:38 PM
Subject: RE: UU ministers arrested


>
> 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.
>
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RE: UU ministers arrested

[Christopher C. Lund]

  I just wanted to respond to a minor point of Professor Cruz who 
said:

"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?"



  There would be no trouble here if the government delegated its 
authority broadly to everyone that wanted to marry two people and clergymen 
were included like everybody else.  But that wouldn't be a real fusion of 
governmental and religious authority.  It would just be a general delegation 
of power -- like the power to contract.

  The real problem here is that New York does not delegate its 
power to marry broadly; it gives it *only* to clergymen and certain public 
officials -- not the general public.  See N.Y. Domestic Relations Law sec. 
11 (explaining that "[n]o marriage shall be valid unless solemnized by 
either: (1) a clergyman or minister of any religion . . . (2) a mayor . . . 
(3) a judge . .  [etc.]").  That's the problem -- this is a special 
delegation of public authority to religious groups a la Larkin v. Grendel's 
Den, Inc., 459 U.S. 116 (1982).  I dig Seeger and Welch, but these sorts of 
statutes usually cannot even plausibly be construed that way; Sec. 11 has 
not even been read to apply to all religions, much less nonreligious people. 
 See Ravenal v. Ravenal, 338 N.Y.S.2d 324 (N.Y. Sup. 1972) (holding that a 
minister of the Universal Life Church was not a clergyman for purposes of 
the statute); Rubino v. City of New York, 480 N.Y.S.2d 971 (N.Y. Sup. 1984) 
(same).  Of course, other states with similar statutes consider ULC to be a 
religion for purposes of making a marriage legitimate, see Matter of Last 
Will and Testament of Blackwell, 531 So.2d 1193 (Miss. 1988) (holding that a 
ULC minister did have power to marry couples in Mississippi under 
Mississippi law, but noting that New York, North Carolina, and Virginia all 
did not permit such things under their statutes).  So the moral is if you 
are a ULC minister trying to make a living solemnizing marriages, go to 
Mississippi.  This is all very entanglement to me.

   Chris

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Re: UU ministers arrested

[Steven Jamar]

On Wednesday, March 17, 2004, at 10:17  AM, Marty Lederman wrote:

Of course, we don't really know from these Washington Post and CNN stories what the true "facts" of the case are, or what the factual predicate might be for the prosecution.  Perhaps the criminal charges are based on the ceremonial proceedings, in which case Eugene has cause to be concerned.  Perhaps not.  All of which goes to demonstrate, as is so frequently the case on this list, that perhaps it would behoove us to find out more details about the facts and the law before we spend a lot of time and energy debating the constitutional question.

But, but, but, Marty!  What would we do then?  Why cloud the issue with facts?  :)

Seriously, I think we need to be careful - probably more careful than we sometimes are (or I need to be more careful than I sometimes am) - to distinguish between the constitutional analysis of the particular situation and the analysis of the potential constitutional issues that can arise in such a situation, depending upon the facts.  It is the nature of listserves to have discussion sparked by real events which raise real issues - even if we don't know the facts fully - and I don't understand Marty to be suggesting that this topic is off the mark or not fully ripe for our discussion.  Just that this particular case with its particular set of facts is not yet ripe for our judgment.  To that extent I think Marty's caution is a good one - that we perhaps ought keep in mind more than we (or at least I) do.

Of course the problem is compounded in my case by my lack of knowledge of family law, of criminal law, and of NY law.

But it is fun to talk about, isn't it?  And it does raise some significant issues of policy and law and religion.

Thanks for the useful caution, Marty.

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/

"No place affords a more striking conviction of the vanity of human hopes than a public library."

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Re: UU ministers arrested

[Marty Lederman]

I do not mean to be suggesting, in the slightest, 
any sympathy for this silly and outrageous criminal prosecution, but the CNN 
story suggests at least two grounds that might alleviate some of the 
constitutional problems that Eugene has raised with respect to 
the criminal charges.  The story relates that:
 
(i) "Sangrey and Greenleaf signed affidavits for 
the couples they married and said they considered the ceremonies civil and 
legally binding."
 
and
(ii) "Williams said he was compelled to prosecute Greenleaf and Sangrey 
because they 'publicly proclaimed their intent to perform civil marriages under 
the authority invested in them by New York State law, rather than performing 
purely religious ceremonies.'"
If these ministers have signed civil-law afffidavits, or licenses, that in 
the ordinary course are to be used by couples as verification of marriage (for 
purposes of, e.g., obtaining benefits, court proceedings, etc.), and if 
the marriages turn out to be invalid, then the ministers' formal signatures on 
those documents (rather than their participation in the ceremony, as such) might 
be said to be a means of abetting fraud, in which case there is 
no serious Free Speech problem.
And if they are "publicly" holding themsleves out to be in the business of 
performing civil same-sex marriages "under the authority invested in them by New 
York State law," and if it turns out that they have no such authority 
(again, a big "if"), then in theory they could be penalized for false and 
misleading advertising.
Of course, we don't really know from these Washington Post and CNN stories 
what the true "facts" of the case are, or what the factual predicate might 
be for the prosecution.  Perhaps the criminal charges are based on the 
ceremonial proceedings, in which case Eugene has cause to be 
concerned.  Perhaps not.  All of which goes to demonstrate, 
as is so frequently the case on this list, that perhaps it would behoove us to 
find out more details about the facts and the law before we spend a lot of time 
and energy debating the constitutional question.
 

  - Original Message - 
  From: 
  Steven 
  Jamar 
  To: Law & Religion issues for Law 
  Academics 
  Sent: Wednesday, March 17, 2004 9:46 
  AM
  Subject: Re: UU ministers arrested
  CNN's account provides some more detailhttp://www.cnn.com/2004/LAW/03/16/gay.marriage.ny/index.htmlSteve-- 
  Prof. Steven D. Jamar vox: 202-806-8017Howard University School of Law 
  fax: 202-806-85672900 Van Ness Street NW mailto:[EMAIL PROTECTED]Washington, 
  DC 20008 http://www.law.howard.edu/faculty/pages/jamar/"If 
  a man empties his purse into his head, no man can take it away from him. An 
  investment in knowledge always pays the best interest."Benjamin 
  Franklin
  
  

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Re: UU ministers arrested

[Steven Jamar]

CNN's account provides some more detail

http://www.cnn.com/2004/LAW/03/16/gay.marriage.ny/index.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/

"If a man empties his purse into his head, no man can take it away from him.  An investment in knowledge always pays the best interest."

Benjamin Franklin
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RE: UU ministers arrested

[Volokh, Eugene]

I think that if someone falsely claims to be exercising legal authority *and people 
are likely to be deceived into believing that he is*, then indeed the state could 
impose sanctions for misspeaking for the government.
 
But here everyone knows that the minister doesn't have legal authority.  In this 
context, any claim of legal authority will clearly not be seen as a factual assertion 
-- "the government is blessing this marriage."  Rather, it would be seen as a 
statement of opinion:  "Based on how I think the Constitution should be interpreted, 
this ought to be seen as a valid marriage under the law."
 
I'm pretty sure that this is exactly how the people who participated in the weddings, 
saw the weddings, and heard about the weddings, understood the statements.  No-one 
actually thought that the judge was literally speaking for the state, precisely 
because everyone knew that the state doesn't recognize the marriage that the minister 
ostensibly solemnized.
 
A hypothetical:  Imagine that there is a play in which a minister goes through a 
marriage ceremony for a same-sex couple, and says the "authority vested in me by the 
State of New York" line.  Illegal?  I don't think so, because it's clear to everyone 
that in fact the minister isn't really exercising government authority, or creating a 
legally recognized marriage.
 
The same-sex wedding ceremony is different because the parties are engaging in a 
religious marriage, and the parties and the minister would like the marriage to be 
legally recognized as a marriage.  But it's equally clear to everyone that in fact the 
minister isn't really exercising government authority, or creating a legally 
recognized marriage.
 
Both the play and the actual marriage ceremony, I think, are fully protected speech.  
They aren't punishable on a "misspeaking for the government" rationale because it's 
clear to everyone that no-one is actually speaking on the government's behalf, even if 
the "authority vested in me by the State of New York" line is said.
 
Eugene
 
David Cruz writes:
 
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. . . .

 

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RE: UU ministers arrested

[David Cruz]

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.

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RE: UU ministers arrested

[Volokh, Eugene]

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 morning after 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, precisely because 
everyone knows that it's not true (at least in the sense that less controversial 
statements such as "William Rehnquist is the lawfully selected Chief 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 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.
 
(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 speech involved 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 false 
statements 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 that legal 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 likely to 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 abetting future 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 that under 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 pr

RE: UU ministers arrested

[Berg, Thomas C.]

erform
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 marriage laws
end up being declared constitutional.
 
Tom Berg
University of St. Thomas School of Law (Minnesota)
 
 

  _  

From: Volokh, Eugene [mailto:[EMAIL PROTECTED]
Sent: Tue 3/16/2004 12:56 PM
To: Law & Religion issues for Law Academics
Subject: RE: UU ministers arrested


What exactly does it mean to "purport to exercise the authority vested
in [one] by the State of New York"?  If the claim is that the clergyman is
trying to defraud someone by claiming authority he doesn't have, that just
seems incorrect on the facts.  If the claim is that the clergyman is making
an assertion about what he thinks is the proper understanding of the state
constitution -- an assertion that everyone realizes is just an opinion, and
one that they shouldn't rely on -- and then engaging in speech and a
religious ceremony based on that opinion, then how is the clergyman doing
any more than exercising his First Amendment rights, even if the state
courts disagree with that assertion?
 
Eugene


-Original Message-----
From: Douglas Laycock [mailto:[EMAIL PROTECTED] 
Sent: Tuesday, March 16, 2004 10:48 AM
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
<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]>
mailto:[EMAIL PROTECTED] 
Washington, DC  20008   <http://www.law.howard.edu/faculty/pages/jamar/>
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 

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Re: UU ministers arrested

[A.E. Brownstein]

Some opposite-sex marriages are motivated by opposite-sex desire and some 
are motivated by religious belief, at least to some extent. A lot of 
opposite-sex marriages are motivated by both desires and beliefs. I have no 
reason to believe that this diversity of desires and motives is different 
for same-sex marriages. Without more, I tend to believe that couples who 
chose to be married by clergy are motivated in part by religious belief.

Alan Brownstein
UC Davis
At 03:00 PM 3/16/2004 -0600, you wrote:
I have trouble thinking through what the rules should be when the 
starting premise is some version of uniting religious and legal 
marriage.  But I think I can pose your question free of that.

Whether or not pastors are deputized to perform legal marriages, 
suppose the state says we will recognize relationships that satisfy the 
legal definition of marriage.  That definition is limited to one-man, 
one-woman.  And then Unitarians say, under a state RFRA or state free 
exercise clause, that definition excludes same-sex Unitarian 
marriages.  And you have to have a compelling interest for not 
recognizing our marriages.

I think that claim usually fails, because the same-sex marriage 
is not motivated by religious belief.  It is motivated by same-sex 
desire, and then blessed by a sympathetic religious organization.  The 
after-the-fact religious blessing cannot convert it into a RFRA claim.



At 12:01 PM 3/16/2004 -0800, you wrote:
I'm still thinking about this,Doug. Let me ask --  do you think there 
would be a constitutional violation under a constitutional regime that 
protected the free exercise of religion against neutral laws of general 
applicability? The clergy in question would be asking for an exemption 
from the law that prohibits the legal solemnizing of same sex marriages. 
Suppose a religious high school wants the degree it confers on graduates 
to be recognized as a high school diploma for legal purposes. The state 
refuses to recognize it because the state disagrees with some aspect of 
the religious school's curriculum. Under an rigorously enforced free 
exercise principle (similar to the one adopted in RFRA), does the state 
bear some burden of justification to explain why the education provided 
at the religious school does not deserve the same recognition that the 
education provided at other public and private religious schools receive. 
Is it enough for the state to simply state, we have this criteria and the 
religious school did not satisfy it. Or must the state defend its 
criteria under some rigorous level of review?

Or to put the question another way, given the clear religious foundation 
underlying the state's commitment to marriage being limited to a man and 
woman, don't faith communities that recognize same-sex marriages deserve 
more of a showing than a rational basis from the state to explain why the 
marriage ceremonies performed by their clergy do not receive legal 
recognition while the ceremonies performed by the clergy of other faiths 
receive such recognition.

Alan Brownstein
UC Davis
At 12:48 PM 3/16/2004 -0600, you wrote:
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 solut

Re: UU ministers arrested

[Robert O'Brien]

Title: Message



I heard an interview with the two ministers earlier 
today. One claimed that the civil officer (mayor? judge?)  was overwhelmed 
with the number of people wanting to be married.  The minister offered to 
take on the task of performing the ceremony for some of the couples.  She 
claims that she did not know she was doing anything wrong.
 
Bob

  - Original Message - 
  From: 
  Volokh, 
  Eugene 
  To: Law & Religion issues for Law 
  Academics 
  Sent: Tuesday, March 16, 2004 1:56 
  PM
  Subject: RE: UU ministers arrested
  
      What exactly does it mean to "purport to 
  exercise the authority vested in [one] by the State of New York"?  If the 
  claim is that the clergyman is trying to defraud someone by claiming authority 
  he doesn't have, that just seems incorrect on the facts.  If the claim is 
  that the clergyman is making an assertion about what he thinks is the proper 
  understanding of the state constitution -- an assertion that everyone realizes 
  is just an opinion, and one that they shouldn't rely on -- and then 
  engaging in speech and a religious ceremony based on that opinion, then how is 
  the clergyman doing any more than exercising his First Amendment rights, even 
  if the state courts disagree with that assertion?
   
      Eugene
      
  

-Original Message-From: Douglas 
Laycock [mailto:[EMAIL PROTECTED] Sent: Tuesday, 
March 16, 2004 10:48 AMTo: Law & Religion issues for Law 
    AcademicsSubject: Re: UU ministers 
arrestedThe 
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 

Re: UU ministers arrested

[Douglas Laycock]

I have trouble thinking through what the rules should be when the 
starting premise is some version of uniting religious and legal 
marriage.  But I think I can pose your question free of that.

Whether or not pastors are deputized to perform legal marriages, 
suppose the state says we will recognize relationships that satisfy the 
legal definition of marriage.  That definition is limited to one-man, 
one-woman.  And then Unitarians say, under a state RFRA or state free 
exercise clause, that definition excludes same-sex Unitarian 
marriages.  And you have to have a compelling interest for not recognizing 
our marriages.

I think that claim usually fails, because the same-sex marriage is 
not motivated by religious belief.  It is motivated by same-sex desire, and 
then blessed by a sympathetic religious organization.  The after-the-fact 
religious blessing cannot convert it into a RFRA claim.



At 12:01 PM 3/16/2004 -0800, you wrote:
I'm still thinking about this,Doug. Let me ask --  do you think there 
would be a constitutional violation under a constitutional regime that 
protected the free exercise of religion against neutral laws of general 
applicability? The clergy in question would be asking for an exemption 
from the law that prohibits the legal solemnizing of same sex marriages. 
Suppose a religious high school wants the degree it confers on graduates 
to be recognized as a high school diploma for legal purposes. The state 
refuses to recognize it because the state disagrees with some aspect of 
the religious school's curriculum. Under an rigorously enforced free 
exercise principle (similar to the one adopted in RFRA), does the state 
bear some burden of justification to explain why the education provided at 
the religious school does not deserve the same recognition that the 
education provided at other public and private religious schools receive. 
Is it enough for the state to simply state, we have this criteria and the 
religious school did not satisfy it. Or must the state defend its criteria 
under some rigorous level of review?

Or to put the question another way, given the clear religious foundation 
underlying the state's commitment to marriage being limited to a man and 
woman, don't faith communities that recognize same-sex marriages deserve 
more of a showing than a rational basis from the state to explain why the 
marriage ceremonies performed by their clergy do not receive legal 
recognition while the ceremonies performed by the clergy of other faiths 
receive such recognition.

Alan Brownstein
UC Davis
At 12:48 PM 3/16/2004 -0600, you wrote:
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 

RE: UU ministers arrested

[AJCONGRESS]

It is fairly common for older people top be married in a religious ceremony
but not seek official registration as   married couple for purposes of
avoiding Medicaid taking property to pay for the care of the  new spouse. IF
the state does not enforce it s laws in those cases, can it do so here?
Marc Stern

-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] Behalf Of Steven Jamar
Sent: Tuesday, March 16, 2004 1:13 PM
To: Law & Religion issues for Law Academics
Subject: Re: UU ministers arrested

Thanks Christine - though I believe it is the "lack of a marriage
license being presented" clause that is at stake here.

http://www.poughkeepsiejournal.com/tuesday/localnews/stories/
lo031604s3.shtml

Steve

On Tuesday, March 16, 2004, at 12:57  PM, Christine A Corcos wrote:
>

> NY CLS Dom Rel § 17  (2003)
>
>§ 17.  Clergyman or officer violating article; penalty>clergyman or
other person authorized by the laws of this state to
>perform marriage ceremonies shall solemnize or presume to solemnize
> any
>marriage between any parties without a license being presented to
> him or
>them as herein provided or with knowledge that either party is
> legally
>incompetent to contract matrimony as is provided for in this
> article he
>shall be guilty of a misdemeanor and on conviction thereof shall be
>punished by a fine not less than fifty dollars nor more than five
>hundred dollars or by imprisonment for a term not exceeding one
> year.
>
>
>I assume that the charges are brought based on the interpretation
> of the
>phrase "with knowledge that either party is legally incompetent to
>contract matrimony as is provided for in this article".
>
>
> Christine Corcos
> Associate Professor of Law
> Paul M. Hebert Law Center, Louisiana State University
> Associate Professor, Women's and Gender Studies Program

--
Prof. Steven D. Jamar vox:
202-806-8017
Howard University School of Law   fax:
202-806-8428
2900 Van Ness Street NW
mailto:[EMAIL PROTECTED]
Washington, DC  20008
http://www.law.howard.edu/faculty/pages/jamar

"I am in Birmingham because injustice is here. . . . Injustice anywhere
is a threat to justice everywhere."

Martin Luther King, Jr., (1963)


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Re: UU ministers arrested

[Will Linden]

At 12:48 PM 3/16/04 -0600, you wrote:
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.
 I believe that at least here the officiant customarily makes the
pronouncment "by the authority vested in me by the state of New
York..."
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Re: UU ministers arrested

[A.E. Brownstein]

I'm still thinking about this,Doug. Let me ask --  do you think there would 
be a constitutional violation under a constitutional regime that protected 
the free exercise of religion against neutral laws of general 
applicability? The clergy in question would be asking for an exemption from 
the law that prohibits the legal solemnizing of same sex marriages. Suppose 
a religious high school wants the degree it confers on graduates to be 
recognized as a high school diploma for legal purposes. The state refuses 
to recognize it because the state disagrees with some aspect of the 
religious school's curriculum. Under an rigorously enforced free exercise 
principle (similar to the one adopted in RFRA), does the state bear some 
burden of justification to explain why the education provided at the 
religious school does not deserve the same recognition that the education 
provided at other public and private religious schools receive. Is it 
enough for the state to simply state, we have this criteria and the 
religious school did not satisfy it. Or must the state defend its criteria 
under some rigorous level of review?

Or to put the question another way, given the clear religious foundation 
underlying the state's commitment to marriage being limited to a man and 
woman, don't faith communities that recognize same-sex marriages deserve 
more of a showing than a rational basis from the state to explain why the 
marriage ceremonies performed by their clergy do not receive legal 
recognition while the ceremonies performed by the clergy of other faiths 
receive such recognition.

Alan Brownstein
UC Davis
At 12:48 PM 3/16/2004 -0600, you wrote:
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

Re: UU ministers arrested

[Steven Jamar]

Since the reports are not done by the folk on this list it is sometimes hard to be sure of the facts in the way we would like to be.  But after spending way to much time drifting around on this, I think this much is correct (but am definitely not going to stand by it as fully correct- no doubt more will come clear later).

1.	The ministers performed a religious ceremony.
2.	The ministers intended to also perform the civil marriage under their authority to do so as granted by the state.
3.	The two celebrants did not present a valid marriage license (if they presented one at all, it could not be a valid one since they were of the same sex).
4.	The ministers assert that the marriage is binding both as a religious matter and on the State of New York.

This last point is based on various news reports and requires some inference on my part.

5.	NY Law makes it a crime to marry people who do not have a state-granted license to do so.
6.	The ministers did so anyway.

7.	The prosecutor could have taken the approach of "these marriages will not be recognized by any state or other entity, and so they are just symbolic and are void as a matter of civil law, so either, no law was in fact broken, or if it was, it ought not be prosecuted.  But he didn't.  He chose to escalate the issue.

Steve
-- 
Prof. Steven D. Jamar vox:  202-806-8017
Howard University School of Law   fax:  202-806-8428
2900 Van Ness Street NW	mailto:[EMAIL PROTECTED]
Washington, DC  20008   http://www.law.howard.edu/faculty/pages/jamar

"Our scientific power has outrun our spiritual power. We have guided missiles and misguided man."

- Martin Luther King Jr., "Strength to Love", 1963


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RE: UU ministers arrested

[Volokh, Eugene]

Title: Message



    What exactly does it mean to "purport to 
exercise the authority vested in [one] by the State of New York"?  If the 
claim is that the clergyman is trying to defraud someone by claiming authority 
he doesn't have, that just seems incorrect on the facts.  If the claim is 
that the clergyman is making an assertion about what he thinks is the proper 
understanding of the state constitution -- an assertion that everyone realizes 
is just an opinion, and one that they shouldn't rely on -- and then 
engaging in speech and a religious ceremony based on that opinion, then how is 
the clergyman doing any more than exercising his First Amendment rights, even if 
the state courts disagree with that assertion?
 
    Eugene
    

  
  -Original Message-From: Douglas Laycock 
  [mailto:[EMAIL PROTECTED] Sent: Tuesday, March 16, 2004 
  10:48 AMTo: Law & Religion issues for Law 
  AcademicsSubject: Re: UU ministers 
  arrestedThe 
  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 
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post, send message to 
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  Douglas LaycockUniversity of Texas Law School727 
  E. Dean Keeton St.Austin, TX  
  78705512-232-1341 
  (voice)512-471-6988 
  (fax)[EMAIL PROTECTED] 
  
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RE: UU ministers arrested

[Volokh, Eugene]

Title: Message



    Seems to me like a pretty 
clear constitutional violation.  The only things that the ministers did 
here was (1) say some words, which have no force of law, and (2) perform a 
religious ceremony, which may be seen as religiously binding by the parties but 
again has no legal significance.  Nor is there any evidence of any intent 
to participate in a scheme of deceiving either party, or the world at large (as 
there might be if a minister presides over a marriage where one party is already 
married, and the minister knows this and the other party doesn't).
 
    How is a law banning such 
purely religious ceremonies that consist merely of speech any different from a 
law banning adult baptism, bar mitzvahs, ordinations, or any other similar 
ceremonies (unless the proper license is received, which may not be 
available for some people)?  If some church took quite literally the notion 
of a woman marrying the church when she becomes a nun, and had what it called a 
marriage ceremony in which a woman marries an organization rather than a person, 
could the law possibly ban this on the grounds that it's illegal to marry 
corporations or other associations?
 
    Eugene

  
  -Original Message-From: [EMAIL PROTECTED] 
  [mailto:[EMAIL PROTECTED] Sent: Tuesday, March 16, 2004 10:37 
  AMTo: [EMAIL PROTECTED]Subject: Re: UU 
  ministers arrested
          Isn't there something conceptually 
  odd about the charge "of solemnizing a marriage without a license"? How 
  is "solemnizing" used here?  Further, if certain kinds of unions (S-S 
  unions, for instance) are against the law in NY or do not count as 
  "marriage," it seems conceptually impossible to be guilty of this charge. 
  Of course, the crime can be "attempting  to perform a marriage," 
  which presumably would be the case if whatever the ministers were 
  doing was attempted without the appropriate license. Is this right? 
  
   
  BobbyRobert Justin LipkinProfessor of 
  LawWidener University School of 
LawDelaware
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Re: UU ministers arrested

[RJLipkin]

        Isn't there something conceptually odd about the charge "of solemnizing a marriage without a license"? How is "solemnizing" used here?  Further, if certain kinds of unions (S-S unions, for instance) are against the law in NY or do not count as "marriage," it seems conceptually impossible to be guilty of this charge. Of course, the crime can be "attempting  to perform a marriage," which presumably would be the case if whatever the ministers were doing was attempted without the appropriate license. Is this right? 
 
BobbyRobert Justin LipkinProfessor of LawWidener University School of LawDelaware
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Re: UU ministers arrested

[Douglas Laycock]

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 
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A word is dead 
When it is said, 
Some say. 
I say it just 
Begins to live 
That day. 
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Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
512-232-1341 (voice)
512-471-6988 (fax)
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Re: UU ministers arrested

[Steven Jamar]

Thanks Christine - though I believe it is the "lack of a marriage  
license being presented" clause that is at stake here.

http://www.poughkeepsiejournal.com/tuesday/localnews/stories/ 
lo031604s3.shtml

Steve

On Tuesday, March 16, 2004, at 12:57  PM, Christine A Corcos wrote:


NY CLS Dom Rel § 17  (2003)

   § 17.  Clergyman or officer violating article; penalty   If any
   clergyman or other person authorized by the laws of this state to
   perform marriage ceremonies shall solemnize or presume to solemnize  
any
   marriage between any parties without a license being presented to  
him or
   them as herein provided or with knowledge that either party is  
legally
   incompetent to contract matrimony as is provided for in this  
article he
   shall be guilty of a misdemeanor and on conviction thereof shall be
   punished by a fine not less than fifty dollars nor more than five
   hundred dollars or by imprisonment for a term not exceeding one  
year.

   I assume that the charges are brought based on the interpretation  
of the
   phrase "with knowledge that either party is legally incompetent to
   contract matrimony as is provided for in this article".

Christine Corcos
Associate Professor of Law
Paul M. Hebert Law Center, Louisiana State University
Associate Professor, Women's and Gender Studies Program
--
Prof. Steven D. Jamar vox:   
202-806-8017
Howard University School of Law   fax:   
202-806-8428
2900 Van Ness Street NW	 
mailto:[EMAIL PROTECTED]
Washington, DC  20008
http://www.law.howard.edu/faculty/pages/jamar

"I am in Birmingham because injustice is here. . . . Injustice anywhere  
is a threat to justice everywhere."

Martin Luther King, Jr., (1963)

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RE: UU ministers arrested

[Christine A Corcos]

NY CLS Dom Rel § 17  (2003)

   § 17.  Clergyman or officer violating article; penalty   If any
   clergyman or other person authorized by the laws of this state to
   perform marriage ceremonies shall solemnize or presume to solemnize any
   marriage between any parties without a license being presented to him or
   them as herein provided or with knowledge that either party is legally
   incompetent to contract matrimony as is provided for in this article he
   shall be guilty of a misdemeanor and on conviction thereof shall be
   punished by a fine not less than fifty dollars nor more than five
   hundred dollars or by imprisonment for a term not exceeding one year.


   I assume that the charges are brought based on the interpretation of the
   phrase "with knowledge that either party is legally incompetent to
   contract matrimony as is provided for in this article".


Christine Corcos
Associate Professor of Law
Paul M. Hebert Law Center, Louisiana State University
Associate Professor, Women's and Gender Studies Program
LSU A&M
W325 Law Building
1 East Campus Drive
Baton Rouge LA 70803
tel:  225/578-8327
fax: 225/578-3677
home page: faculty.law.lsu.edu/ccorcos
email: [EMAIL PROTECTED]


   
  David Cruz   
  <[EMAIL PROTECTED]> To:  [EMAIL PROTECTED], Law 
& Religion issues for Law Academics
  Sent by:<[EMAIL PROTECTED]>
  [EMAIL PROTECTED] cc:  (bcc: Christine A 
Corcos/ccorcos/LSU)
  ts.ucla.edu     Subject: RE: UU ministers 
arrested
   
   
  03/16/2004 11:33 AM  
  Please respond to Law &  
  Religion issues for Law  
  Academics
   
   



On Tue, 16 Mar 2004, Gene Summerlin wrote:

> Do you know what the criminal charge is?  I could certainly envision the
> state refusing to recognize the marriages performed by the ministers or,
> perhaps, the state revoking the ministers licensure, but what is the
> criminal law which they have broken?


My understanding is that New York law prohibits the "solemnization" of
unlawful marriages, where "solemnization" is required (in addition to a
license) for a civil marriage.  Solemnization may be performed by
religious or government officials.

David B. Cruz
Professor of Law
University of Southern California Law School
Los Angeles, CA 90089-0071
U.S.A.

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RE: UU ministers arrested

[David Cruz]

On Tue, 16 Mar 2004, Gene Summerlin wrote:

> Do you know what the criminal charge is?  I could certainly envision the
> state refusing to recognize the marriages performed by the ministers or,
> perhaps, the state revoking the ministers licensure, but what is the
> criminal law which they have broken?


My understanding is that New York law prohibits the "solemnization" of
unlawful marriages, where "solemnization" is required (in addition to a
license) for a civil marriage.  Solemnization may be performed by
religious or government officials.

David B. Cruz
Professor of Law
University of Southern California Law School
Los Angeles, CA 90089-0071
U.S.A.

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Re: UU ministers arrested

[Steven Jamar]

Here is what another article said:

"Unitarian Universalist ministers Kay Greenleaf and Dawn Sangrey were charged with multiple counts of solemnizing a marriage without a license, the same charges leveled against New Paltz Mayor Jason West, who last month drew the state into the widening national debate over same-sex unions." 

http://www.washingtonpost.com/wp-dyn/articles/A60290-2004Mar15.html?nav=headlines
-- 
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/

"The aim of education must be the training of independently acting and thinking individuals who, however, see in the service to the community their highest life achievement."

Albert Einstein
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Re: UU ministers arrested

[Steven Jamar]

Not exactly - it is a misdemeanor charge - I assume it is something 
like a law that makes it a misdemeanor to perform marriage without a 
license - there are lots of such minor crimes around.  Though here the 
crime would be a licensed person performing an illegal marriage - like 
between 12 years olds.  Many statutes granting licenses to various 
professionals include as a matter of course, it seems, criminal 
sanctions for violating the terms of the license.

The specific crime is not reported in the Washington Post article - but 
it is not a license revocation proceding.  It is a criminal action 
punishable by up to year in jail.

Steve

On Tuesday, March 16, 2004, at 12:20  PM, Gene Summerlin wrote:

Steve,

Do you know what the criminal charge is?  I could certainly envision 
the
state refusing to recognize the marriages performed by the ministers 
or,
perhaps, the state revoking the ministers licensure, but what is the
criminal law which they have broken?
--
Prof. Steven D. Jamar vox:  
202-806-8017
Howard University School of Law   fax:  
202-806-8428
2900 Van Ness Street NW	
mailto:[EMAIL PROTECTED]
Washington, DC  20008   
http://www.law.howard.edu/faculty/pages/jamar

"Our scientific power has outrun our spiritual power. We have guided 
missiles and misguided man."

- Martin Luther King Jr., "Strength to Love", 1963

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RE: UU ministers arrested

[Gene Summerlin]

Steve,

Do you know what the criminal charge is?  I could certainly envision the
state refusing to recognize the marriages performed by the ministers or,
perhaps, the state revoking the ministers licensure, but what is the
criminal law which they have broken?

Gene Summerlin
Ogborn Summerlin & Ogborn P.C.
210 Windsor Place
330 So. 10th St.
Lincoln, NE  68508
(402) 434-8040
(402) 434-8044 (FAX)
(402) 730-5344 (Mobile)
www.osolaw.com
[EMAIL PROTECTED]


-Original Message-
From: Steven Jamar [mailto:[EMAIL PROTECTED]
Sent: Tuesday, March 16, 2004 11:11 AM
To: Religion & Law List
Subject: UU ministers arrested


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

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