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



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