Let me try to take another shot at this. It seems to me that a
wedding ceremony consists of three things:
1) A mutual promise to love and cherish. While some promises
are punishable -- consider conspiracies to commit crimes, or agreements
to fix prices -- this promise is not. It seems to me that it's
protected under the freedom of intimate association, and to the extent
that it contemplates, um, very intimate association, it's protected
under Lawrence v. Texas. (Of course, if the promise breaches another
promise -- i.e., is bigamous -- or contemplates unprotected intimate
association, such as sex with someone who is underage or possibly
closely related, then that might be different.)
2) Speech and expressive conduct characteristic of the wedding
ceremony. These are protected by the Free Speech Clause. If the
initial promise is constitutionally protected, then the government can't
outlaw the promise coupled with the expressive ceremony.
3) A possible perception by the parties' that the ceremony is
creating a religious obligation on them. Given the Free Exercise
Clause, however, I think the government may not punish otherwise
protected conduct (see 1 and 2) simply because it is seen as creating a
religious obligation.
Thus, it seems to me that the government may not outlaw marriage
ceremonies (at least unless the underlying promise is punishable, for
reasons mentioned in item 1 above). It may deny official recognition to
certain marriages. It may punish people who lead others to think that
some marriage is officially recognized, while knowing that this isn't
so. (A minister who knowingly conducts a seemingly official marriage
ceremony where one party, unbeknowst to the other, is already married to
someone else might well be guilty of aiding and abetting bigamy, or of
conspiracy. Likewise, a minister who fills out a license knowing that
the parties may not marry each other -- but in a situation where this
incapacity isn't blatantly obvious to the busy clerk who records the
form -- might be guilty of a false statement to the government.) But
when the parties know that the marriage is not legally recognized, but
only significant for religious or personal reasons, and no-one else will
be duped by the marriage, either, then I think the marriage is entirely
constitutionally protected.
Eugene
> -----Original Message-----
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of John Fee
> Sent: Monday, August 23, 2004 8:06 PM
> To: [EMAIL PROTECTED]
> Subject: RE: Wedding Clergy
>
>
> I share the reaction that something seems deeply wrong about
> this law, since it prohibits many religious clergy from
> performing ceremonies that have only religious significance
> for the participants, for reasons that are not obvious (to
> prevent confusion as to who is legally married?; to
> discourage people from engaging in unions that they call
> marriage without a license?). But it is not clear to me why
> the rule is unconstitutional under existing free exercise
> law, particularly Smith.
> The law is facially neutral (it mentions clergy, but clearly
> applies to all persons who are authorized to perform licensed
> marriages), does not involve individualized exceptions, and
> does not concern the selection of religious ministers or
> teachers. Perhaps this shows that something is wrong with
> Smith, or (as Doug Laycock says) with the whole idea of
> equating religious and civil marriage.
>
> I wonder if the law would apply to the LDS Church's practice
> of performing marriages for the dead in their temples.
> According to LDS doctrine, a couple is not married in a way
> that matters after death unless married by the proper
> religious authority in the temple. For those who missed this
> opportunity during life, the work is done by proxy after
> death. As far as the LDS are concerned, these are marriage
> ceremonies, uniting couples for eternity. Obviously, the
> deceased couples are not licensed to marry at that point. I
> am not aware that the LDS Church makes any distinction
> between sealers who are authorized to perform licensed
> marriages for the living, and those who are authorized to
> perform marriages for the dead. Why should the civil law
> have an interest in requiring the Church to make such a distinction?
>
> John Fee
> BYU Law School
>
> >>> [EMAIL PROTECTED] 8/23/2004 6:44:54 PM >>>
> Article III, Section 17 of the NYS Domestic Relations Law
> reads: "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."
>
> The pertinent sections of the NYS Domestic Relations Law can
> be found at http://assembly.state.ny.us/leg/?cl=29
> <http://assembly.state.ny.us/leg/?cl=29&a=4> &a=4.
>
>
> [EMAIL PROTECTED]
> [Also: [EMAIL PROTECTED] ]
>
> Visit our Web site at http://www.QueensChurches.org/
>
> Rev. N. J. L'Heureux, Jr.
> Executive Director
> Queens Federation of Churches
> 86-17 105th Street
> Richmond Hill, New York 11418-1597
> Voice (718) 847-6764
> FAX (718) 847-7392
>
>
>
>
> _____
>
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of
> [EMAIL PROTECTED]
> Sent: Monday, August 23, 2004 6:40 PM
> To: [EMAIL PROTECTED]
> Subject: Wedding Clergy
>
>
> Had an interesting discussion with a rabbi in New York last
> weekend. He told me that as a clergyperson licensed by the
> state to perform marriages, he is prohibited from marrying a
> couple in a religious ceremony if they are not also being (or
> already have been) married civilly. He told me that numerous
> times he has had to turn down couples, especially elderly
> couples, who wanted him to perform a religious but not a
> civil marriage. I haven't thought about it deeply, but it
> sounds unconstitutional to me to condition the right to do
> civil marriages on a clergyperson refusing to conduct a
> purely religious ceremony. Thoughts?
>
>
>
> Professor David E. Bernstein
> George Mason University
> School of Law
> http://mason.gmu.edu/~dbernste
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