I continue to think that conducting a marriage
ceremony, religious or secular, is constitutionally protected free speech (so
long as there is no risk of fraud, which is to say that it's clear to everyone
involved, and to those who are likely to hear of the marriage, that the marriage
is not legally recognized). It is simply speech, with no noncommunicative
impacts that may warrant regulation.
While agreements to commit crimes or possibly
even to engage in other constitutionally unprotected conduct might be punishable
as conspiracy (though the precise theory of that is unclear), I don't see how an
agreement to love, honor, and cherish -- and, even if it implicitly includes
having sex, to have constitutionally protected sex -- would fit within any such
exception, any more than an agreement to spread ideas. Perhaps a marriage
ceremony between people who lack the constitutional right to have sex, for
instance when one party is a minor, or possibly if the parties are too closely
related or one of the parties is still married to someone else, might be seen as
somehow aiding and abetting a crime, though I'm skeptical of that. But
absent those factors, the marriage ceremony strikes me as pure speech that
can't be treated as a criminal conspiracy.
This is so even if there is no constitutional right to *marry*
members of the same sex (and I think there isn't). The state has no
obligation to recognize the marriage. But it seems to me that the
simple conduct of a verbal ceremony can't be outlawed, any more than the
conduct of a verbal ceremony in which people pledge to convey Socialist
ideas.
Thus, the right flows from the Free Speech Clause, and is
applicable to the religious and nonreligious alike -- a more appealing result,
it seems to me, than a Free Exercise Clause right which would protect religious
marriage ceremonies but not secular ones.
Eugene
-----Original Message-----
From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Paul Finkelman
Sent: Tuesday, March 15, 2005 6:56 AM
To: Law & Religion issues for Law Academics
Subject: Rights of clergy regarding same-sex marriage? -- a free exercise right?
From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Paul Finkelman
Sent: Tuesday, March 15, 2005 6:56 AM
To: Law & Religion issues for Law Academics
Subject: Rights of clergy regarding same-sex marriage? -- a free exercise right?
I wonder if the reverse argument has more power. That is: if a church declares that the sacrament of marriage is available to *any* couple willing to accept it, does the minister of that church have a free exercise right *to perform* that marriage ceremony?-- Paul Finkelman Chapman Distinguished Professor of Law University of Tulsa College of Law 3120 East 4th Place Tulsa, OK 74104-3189 918-631-3706 (office) 918-631-2194 (fax) [EMAIL PROTECTED]
Ed Darrell wrote:
The right to marry doesn't include the right to a church wedding. Pastors, rabbis and other religious leaders who may perform marriages now have relatively wide latitude to say for whom they will or won't perform the ceremony.The couple may get married in a civil ceremony at the courthouse, or with another official presiding at some other location. Traditionally, in the U.S. the problem has not been finding people to perform marriages, but rather to find people who won't perform them when they shouldn't be performed -- underage kids, for example. This latitute allowed to the marriage solemnizers allows marriage performers to use many different reasons to refuse to perform any particular marriage, even unsavory and against-public-policy reasons.Ed DarrellDallasI'm of the mind that the recent decision from Judge Robert Kramer in
California regarding gay marriage in that state is another step in the
march towards the eventual breaking down of the societal prohibition on
same-sex marriage. One of the arguments I've heard against it is that
the "guvmint" will force religious leaders to perform same-sex
marriages against their conscience. How real is this argument? Are
clergy "forced" to marry mixed-race couples against their will?
--
Edie
"A man without doubts is a monster"
--Garrison Keillor
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