I don’t know what local prosecutors are likely to do here. It’s not clear to me that there’s much mileage for a prosecutor to prosecute a minister for conducting what is clearly a religious ceremony with purely religious effect, and no legal consequence -- even when it’s a same-sex marriage ceremony -- and especially when the case is likely to be a legal loser. Prosecutors, in my experience, don’t like to lose; and while they might think a loss on constitutional grounds to be a good way of condemning the big bad activist judiciary, a loss on the grounds that “you just didn’t read the statute carefully” isn’t something they generally prefer to see. Maybe their desire to score points on same-sex marriage will overcome that; I’m just not sure that it will.
But in any event, my constitutional avoidance pointed related to your earlier statement that, “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).” I don’t see any basis for interpreting a statute more broadly than its text calls for, just on the theory that it hasn’t yet been interpreted according to its text (perhaps because no prosecutions have given an occasion for such an “it means what it says” decision), coupled with the possible chilling effect from hypothetical misinterpretations. Nor do I even see the need for a “narrowing construction.” As I said, if a court just says that the statute, by its own terms, doesn’t apply to same-sex marriages, that would be just fine by me, but it won’t require either “interpret[ing] it as unconstitutionally chilling free exercise (and free speech) or “narrowing” a statute that is already narrow enough to exclude this situation. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Friday, May 09, 2014 3:54 PM To: Law & Religion issues for Law Academics Subject: Re: States prohibiting churches from sanctioning same-sex marriage I see little reason for the statute to be struck down as opposed to being given a narrowing construction, perhaps by referring the question to the state Supreme Court. Zealots? Cuccinelli. Do you really think there are no local prosecutors who would use this statute in the way feared? That the fears are ungrounded? If so, your world is very different from mine. Would it be widespread? No. No more than so many mostly non-issues that we enjoy discussing at length on this list. Sent from Steve's iPhone On May 9, 2014, at 6:45 PM, "Volokh, Eugene" <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote: 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> [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
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.