Thanks, but whose zealotry exactly? To the best of my
knowledge, there has been no prosecution or threatened prosecution of ministers
for conducting same-sex marriages -- the anti-same-sex-marriage forces,
“zealots” or otherwise, don’t seem to have yet acted with regard to such
religious ceremonies (though maybe they just haven’t had a chance). I
understand that, even in the absence of such prosecutions or threats of
prosecution so far, some ministers might be deterred from conducting the
ceremonies, but a court decision interpreting the statute as not applying to
same-sex marriages would suffice, especially since that’s the most natural
reading of the statutory text.
What basis is there for a court, faced with statutory text that
could easily (indeed, most naturally) be interpreted as not covering religious
same-sex marriage ceremonies, to strike down the statute on the theory that it
might be misinterpreted as indeed covering such ceremonies? Wouldn’t that be
the exact opposite of how courts generally operate under the principle of
constitutional avoidance?
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Friday, May 09, 2014 3:33 PM
To: Law & Religion issues for Law Academics
Subject: Re: States prohibiting churches from sanctioning same-sex marriage
Yes. You are missing zealotry and the fact that and means or.
Sent from Steve's iPhone
On May 9, 2014, at 6:20 PM, "Volokh, Eugene"
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:
Oh, I agree that the law doesn’t categorically exempt purely
religious ceremonies. The prohibition in section 51-7 would apply to such
ceremonies, but only if a license is “required by law” for such ceremonies.
But I don’t see how section 51-7 makes it a crime to celebrate a religious
ceremony connected to a marriage for which a license is neither required nor
even allowed. Or am I missing something?
Eugene
From:
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Friday, May 09, 2014 3:17 PM
To: 'Law & Religion issues for Law Academics'
Subject: RE: States prohibiting churches from sanctioning same-sex marriage
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>
[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, I’d be happy to see a declaratory judgment making clear
that the statutes don’t 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 don’t
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 doesn’t 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 don’t 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 Esser’s 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 it’s the North Carolina one, a recent post argued, I
think, persuasively, that North Carolina statutes don’t actually prohibit
religious same-sex marriage ceremonies.
Eugene
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 10:36 AM
To: Law & Religion issues for Law Academics
Subject: States prohibiting churches from sanctioning same-sex marriage
Isn’t 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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