Sounds like a classic unconstitutional conditions question: May
the government say "in exchange for getting this benefit -- the power to
act as our agent solemnizing marriages -- you may not engage in other
speech when you're working for us"? The cases are notoriously not
entirely consistent -- compare FCC v. League of Women Voters (answering
"no") with Pickering (answering "maybe"); but at the very least they
require some pretty strong government interest. The interest described
below doesn't, I think, suffice, especially when we're talking about the
minister's solemnizing marriages that are clearly not legally
recognized, such as same-sex marriages.
Eugene
> -----Original Message-----
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of marc stern
> Sent: Thursday, August 26, 2004 7:55 AM
> To: 'Law & Religion issues for Law Academics'
> Subject: RE: Right to participate in a marriage ceremony
>
>
> Why is not the government entitled to say if you are acting
> as our agent to solemnize marriages, you may not also perform
> non-recognized marriages, if only to prevent confusion about
> which marriages are which, especially since that may have to
> be proved years later when witnesses are not available and
> memories are not fresh? Marc Stern .
>
> -----Original Message-----
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of
> Volokh, Eugene
> Sent: Thursday, August 26, 2004 1:08 AM
> To: Law & Religion issues for Law Academics
> Subject: Right to participate in a marriage ceremony
>
> 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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> >
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> >
> _______________________________________________
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>
>
> _______________________________________________
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