The principal source of ambiguity is that §51-7 goes on to provide an
exception for couples who are married by a judge and later have a religious
ceremony as well. Hard to see why that exception was needed if no one
thought the law reached purely religious ceremonies.
Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Friday, May 09, 2014 6:11 PM
To: Law & Religion issues for Law Academics
Subject: RE: States prohibiting churches from sanctioning same-sex marriage
Well, Id be happy to see a declaratory judgment making
clear that the statutes dont apply here. But that seems to me to be pretty
certain from the text of the statute; section 51-7 provides, Every
minister, officer, or any other person authorized to solemnize a marriage
under the laws of this State, who marries any couple without a license being
first delivered to that person, as required by law, or after the expiration
of such license, or who fails to return such license to the register of
deeds within 10 days after any marriage celebrated by virtue thereof, with
the certificate appended thereto duly filled up and signed, shall forfeit
and pay two hundred dollars ($200.00) to any person who sues therefore, and
shall also be guilty of a Class 1 misdemeanor. In a same-sex marriage,
there is no license required by law to be delivered to the person; indeed,
no license is legally possible. So I dont see any basis for invalidating
the statute on free speech or free exercise grounds as to same-sex
marriages, though, as I said, it would be just fine to make clear that the
statute indeed doesnt bar such ceremonies.
From: religionlaw-boun...@lists.ucla.edu
<mailto:religionlaw-boun...@lists.ucla.edu>
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Friday, May 09, 2014 12:47 PM
To: Law Religion & Law List
Subject: Re: States prohibiting churches from sanctioning same-sex marriage
I dont find that analysis persuasive in the sense that ministers would
properly fear prosecution under that statute for performing a solemnization
ceremony for same sex couples they would, as I read the statute, violate
two aspects of it: peforming a solemnization ceremony between same sex
couples AND doing so without a state-issued marriage license to perform that
ceremony.
To avoid the constitutional problem, the NC court could interpret it as Will
Esser proposes, but it could also find the statute to be unconsitutionally
vague or ambiguous as to the particular issue of performing a solemnization
ceremony for a same sex couple.
Given that the suit is in federal court and no state court has definitively
ruled that Essers interpretation is the correct one, it seems that the
federal court might well interpret it as unconstitutionally chilling free
exercise (and free speech).
Steve
--
Prof. Steven D. Jamar vox: 202-806-8017
Director of International Programs, Institute for Intellectual Property and
Social Justice http://iipsj.org
Howard University School of Law fax: 202-806-8567
http://sdjlaw.org
"I do not at all resent criticism, even when, for the sake of emphasis, it
for a time parts company with reality."
Winston Churchill, speech to the House of Commons, 1941
On May 9, 2014, at 2:13 PM, Volokh, Eugene <vol...@law.ucla.edu
<mailto:vol...@law.ucla.edu> > wrote:
I agree entirely, but which particular statutory scheme is
under discussion? If its the North Carolina one, a recent post argued, I
think, persuasively, that North Carolina statutes dont actually prohibit
religious same-sex marriage ceremonies.
Eugene
From: <mailto:religionlaw-boun...@lists.ucla.edu>
religionlaw-boun...@lists.ucla.edu [
<mailto:religionlaw-boun...@lists.ucla.edu>
mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Friday, May 09, 2014 10:36 AM
To: Law & Religion issues for Law Academics
Subject: States prohibiting churches from sanctioning same-sex marriage
Isnt this an easy case of free exercise violation? Assuming that states do
not need to recognize same sex marriages as a matter of federal equal
protection law, and do not need recognize church-recognized same sex
marriages as vaild for state purposes (though the state would still
recognize church authority to perform opposite-sex marriage), can the state
ban a church from performing a religious marriage ceremony?
--
Prof. Steven D. Jamar vox: 202-806-8017
Director of International Programs, Institute for Intellectual Property and
Social Justice <http://iipsj.org/> http://iipsj.org
Howard University School of Law fax: 202-806-8567
<http://sdjlaw.org/> http://sdjlaw.org
"Education: the path from cocky ignorance to miserable uncertainty."
Mark Twain
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