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 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

Steve
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