RE: NRO Article
Mr Darrell: No one has claimed that a Senate resolution has the force of law, certainly not me. But if your contention is that a sense of the Senate resolution, and language in a conference committee report, is never looked to (by courts or administrative agencies) when adopting regulations or interpreting the law, then your contention is patently false (except, perhaps, under Justice Scalias view of legislative history, which last I checked had not garnered the support of a majority of the Court). Yet you repeat once again that in Ohio (and you now add that also in Texas) the claim was made that the law required the teaching of intelligent design (although you now admit that it was not made by the Discovery Institute, which was your initial assertion). Whether anyone else made the claim should be easy to verify. All I asked was for a citation. If there is one, I should very much like to see it, so that I can assessso that we can all assesswhether the claims being made are accurate or not. Sincerely, John Eastman -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] Sent: Monday, March 15, 2004 8:33 PM To: [EMAIL PROTECTED] Subject: Re: NRO Article I have two responses: First, no sense of the Senate resolution has the force of law, according to the U.S. Senate Counsel. U.S. Senate: Legislation Records Home Legislative Process Legislation, Laws, and Acts (see Simple Resolutions) Any suggestion otherwise is false. This is well-established law, and I find efforts to fudge the lines reprehensible. This not a subject for opinion. Second, Sen. Santorum did not propose this as a sense of the Senate resolution. He proposed it as a full-blown amendment. Sen. Kennedy made it clear that the bill was dead if the language remained, and Sen. Santorum backed down, agreeing to a sense of the Senate resolution instead. As Sen. Kennedy's office has made clear, he does not endorse the idea, and had he agreed that the idea deserved to be law, he would not have demanded it be removed from the bill. If you want a good earful, call Kennedy's office and ask if they think problems with evolution should be taught. Santorum's protestations are interesting, but ineffective. The language is not law. The language of the Santorum amendment is ambiguous to someone who does not understand the code words used by creationists, and I doubt more than two or three senators realized how the resolution would be represented. In Ohio, the claim was that the law required intelligent design to be taught. That was repeated, though not by the Discovery Institute, in several pieces of testimony to the Texas SBOE this summer. The Department of Education is forbidden from participating in writing curricula by tradition and law -- as was the the Commissioner of Education before ED was established. Congress refrains as well. So the claims that a sense of the Senate resolution which gets a nice mention in a conference report are law are false, and continuing efforts to fudge the lines go against law, tradition and wisdom, in my view. There may be a court test of this stuff. I'm willing to wager who will win on the point. Ed Darrell Dallas In a message dated 3/15/2004 10:15:06 PM Central Standard Time, [EMAIL PROTECTED] writes: Ed Darrell has made some specific new claims of fraud below. (at least if done under federal research aegis). A couple I have been able to review are worth exploring further. 1. Among other false claims made against science by the campaign against Darwin in the past several years are these: That the No Child Left Behind law requires intelligent design to be taught (before the Ohio School Board) (the law has no such requirement); The Conference Report of the NCLB contains language, tracking a sense of the Senate resolution that had been adopted in the Senate 91-8 on June 3, 2001 (CR S6153) that urges: Where topics are taught that may generate controversy (such as biological evolution), the curriculum should help students to understand the full range of scientific views that exist, why such topics may generate controversy, and how scientific discoveries can profoundly affect society. If Professor Darrell has a specific citation to the Ohio School Board depicting whether someone argued that NCLB requires the teaching of intelligent design, I would like to see it. My understanding is that the argument was simply that NCLB permitted (even encouraged) the teaching of scientific views that called Darwins theory into question. 2. that a sense of the Senate resolution is as good as law (it has no force of law); I am not aware of any claim by The Discovery Institute that the Senate resolution (or the conference committee report language tracking it) attached to the NCLB has the force of law or that it was legally mandatory. Their point, which is available at http://www.discovery.org/articleFiles/PDFs/santorumLanguageShouldGuide.pdf, is that a
Re: NRO Article
As a former philosophy professor I can't resist making two points:First, as Hume insists, any world at all must reveal some structure however chaotic. Thus the ID position seems to be clearly unfalsifiable. What empirical facts could exist convincing IDists that there exists a world without an intelligent designer. (I could surely imagine circumstances in which skeptics might cease denying the existence of an ID; for example, the most elementaryproof would be if he or she made one's acquaintance.) Second,much more important, in my view, is that if there exists an intelligent designer I'm afraid that he or she is not very intelligent, or if intelligent, then he or she is likely to be morally perverse. The argument from evil or suffering has convinced me (at least) that given their existence (and abundance), an intelligent designer is not someone I could admire. Failure to relieve our suffering while capable of doing so, in my book disqualifies an ID as a candidate for admiration let alone reverence.Please understand, I am terribly familiar with the attempts to rationalize the existence of an omniscient, omnipotent, and moral just (and perfect) designer. Some familiar rationalizations arefreewill, developing character, Leibniz' best of all possible worlds, possible world semantics, knowing good requires knowledge of evil (indeed, the existence of good requires the existence of evil), and a host of other rationalizations. So, whetherright or wrong, my argument, I hope it would be granted, is not naive. These rationalizations are just that rationalizations. I continue to marvel at the irony in the instinct to rationalize. If any human being, for example, permittedcertain kinds of evil and suffering, while having the power to intervene, we would castigate her or him severely. But somehow certain conceptions of an IDer give the designer a pass at his or her (or its) indifference to human suffering. I am confusedwhen natural disasters strike and those who survive often praise an intelligent designer for saving their lives. I don't understandwhy they don't blame their intelligent designer for the deaths of their neighbors. I know different conceptions of the existence of an IDer attempt to explain suffering in ways that to them appear reasonable even sacred. But I think most often one has to first accept the existence of that particular IDer for these explanations to be plausible. Although I believe that the above remarks are relevant to constitutional law and theory, I also realize that others might disagree,and so with this post I'll return to my usual responsibilities. BobbyRobert Justin LipkinProfessor of LawWidener University School of LawDelaware ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
RE: NRO Article
In part Steve and I agree, as he states the main question as well as Ive tried to do. Where did all the matter/energy come from that went into the big bang? Is there any evidence that life forms started with the some accidental interaction between energy and matter? Science has no clue. Thats not to demean the value of scientific information about the developmental processes. Indeed, once one gets past the critical starting points, a lot more than nothing is an understatement. My point is simply that one cannot infer from the incredibly interesting and valuable information science provides that science has information about beginnings, and in teaching science that needs to be made quite clear. Dan -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Steven Jamar Sent: Tuesday, March 16, 2004 10:05 AM To: Law Religion issues for Law Academics Subject: Re: NRO Article Hmm. Science does provide lots of information about origins and about how processes began. Except for the answer to Why is there anything instead of nothing? We can't yet look behind the big bang. But we understand chemistry pretty well. And how it began. And we understand aspects of life and how it began - albeit with a lot more hypothesis and less proof than in the case of chemistry. It is wrong to say no scientific information, however, exists about how these processes began. Scientific information is not the same as scientific proof or irrefutable proof. But we know a lot more than nothing. Steve On Tuesday, March 16, 2004, at 10:41 AM, Gibbens, Daniel G. wrote: Specifically, science has provided reliable information about the processes and development of the physical universe and life within it. No scientific information, however, exists about how these processes began. Specifically, the science curricula must include clear communication that science provides no information about these origins. This is true regardless of whether schools teach creationism or intelligent design elsewhere in the nonscience curricula. 55 Okla.L.Rev. 613 (2002). Dan Gibbens University of Oklahoma College of Law -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8428 2900 Van Ness Street NW mailto:[EMAIL PROTECTED] Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used. Justice Oliver Wendell Holmes in Towne v. Eisner, 245 U.S. 418, 425 (1918) ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
UU ministers arrested
Two Unitarian Universalist Ministers were arrested in NY for performing same-sex marriages under the power granted them by the state, not just as religious unions. Of course the typical faultlines are exposed - including claims of violation of separation of church and state. But surely that cannot be true - this is a simple case of a prosecutor interpreting the State and Federal Constitutions to permit this sort of gender discrimination in marriage - and so enforcing the law as he interprets it. What always strikes me as curious in these are the cries of upholding the law - as if the constitutions were not law, and indeed superior law at that. Anyway does anyone see an establishment problem with these prosecutions that I am missing? washington post article is at http://www.washingtonpost.com/wp-dyn/articles/A61436-2004Mar15.html Steve -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8567 2900 Van Ness Street NW mailto:[EMAIL PROTECTED] Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar/ A word is dead When it is said, Some say. I say it just Begins to live That day. Emily Dickinson 1872___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
RE: NRO Article
Bobby's post is not just an argument against Intelligent Design theory, but against the truth of any religion that posits the existence of a good and omnipotent God (which I will call "traditional theistic religion"). I certainly understand that ID should not be taught in science classes if there is little or no scientific evidence in support of it. But Bobby's argument from evil or suffering cannot by itself preclude the teaching of ID (in science classes or elsewhere in the curriculum) unless the state is permitted to conclude that traditional theistic religion is false. For the courts to so conclude (and to act on that conclusion by prohibiting for that reason the teaching of ID) would violate the Establishment Clause. Individuals are permitted to reach that conclusion, of course, and to take part in the democratic process in reliance on that conclusion. Thus Bobby is free to argue against inclusion of ID in the curriculum on the basis that traditional theistic religion is false-that there can be no good and intelligent designer. But the courts cannot guarantee his success, at least not on the basis of any conclusion by a court that Bobby's argument from evil or suffering is convincing. Mark S. Scarberry Pepperdine University School of Law -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Sent: Tuesday, March 16, 2004 8:05 AM To: [EMAIL PROTECTED] Subject: Re: NRO Article As a former philosophy professor I can't resist making two points:First, as Hume insists, any world at all must reveal some structure however chaotic. Thus the ID position seems to be clearly unfalsifiable. What empirical facts could exist convincing IDists that there exists a world without an intelligent designer. (I could surely imagine circumstances in which skeptics might cease denying the existence of an ID; for example, the most elementaryproof would be if he or she made one's acquaintance.) Second,much more important, in my view, is that if there exists an intelligent designer I'm afraid that he or she is not very intelligent, or if intelligent, then he or she is likely to be morally perverse. The argument from evil or suffering has convinced me (at least) that given their existence (and abundance), an intelligent designer is not someone I could admire. Failure to relieve our suffering while capable of doing so, in my book disqualifies an ID as a candidate for admiration let alone reverence.Please understand, I am terribly familiar with the attempts to rationalize the existence of an omniscient, omnipotent, and moral just (and perfect) designer. Some familiar rationalizations arefreewill, developing character, Leibniz' best of all possible worlds, possible world semantics, knowing good requires knowledge of evil (indeed, the existence of good requires the existence of evil), and a host of other rationalizations. So, whetherright or wrong, my argument, I hope it would be granted, is not naive. These rationalizations are just that rationalizations. I continue to marvel at the irony in the instinct to rationalize. If any human being, for example, permittedcertain kinds of evil and suffering, while having the power to intervene, we would castigate her or him severely. But somehow certain conceptions of an IDer give the designer a pass at his or her (or its) indifference to human suffering. I am confusedwhen natural disasters strike and those who survive often praise an intelligent designer for saving their lives. I don't understandwhy they don't blame their intelligent designer for the deaths of their neighbors. I know different conceptions of the existence of an IDer attempt to explain suffering in ways that to them appear reasonable even sacred. But I think most often one has to first accept the existence of that particular IDer for these explanations to be plausible. Although I believe that the above remarks are relevant to constitutional law and theory, I also realize that others might disagree,and so with this post I'll return to my usual responsibilities. Bobby Robert Justin Lipkin Professor of Law Widener University School of Law Delaware ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
RE: UU ministers arrested
Steve, Do you know what the criminal charge is? I could certainly envision the state refusing to recognize the marriages performed by the ministers or, perhaps, the state revoking the ministers licensure, but what is the criminal law which they have broken? Gene Summerlin Ogborn Summerlin Ogborn P.C. 210 Windsor Place 330 So. 10th St. Lincoln, NE 68508 (402) 434-8040 (402) 434-8044 (FAX) (402) 730-5344 (Mobile) www.osolaw.com [EMAIL PROTECTED] -Original Message- From: Steven Jamar [mailto:[EMAIL PROTECTED] Sent: Tuesday, March 16, 2004 11:11 AM To: Religion Law List Subject: UU ministers arrested Two Unitarian Universalist Ministers were arrested in NY for performing same-sex marriages under the power granted them by the state, not just as religious unions. Of course the typical faultlines are exposed - including claims of violation of separation of church and state. But surely that cannot be true - this is a simple case of a prosecutor interpreting the State and Federal Constitutions to permit this sort of gender discrimination in marriage - and so enforcing the law as he interprets it. What always strikes me as curious in these are the cries of upholding the law - as if the constitutions were not law, and indeed superior law at that. Anyway does anyone see an establishment problem with these prosecutions that I am missing? washington post article is at http://www.washingtonpost.com/wp-dyn/articles/A61436-2004Mar15.html Steve -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8567 2900 Van Ness Street NW mailto:[EMAIL PROTECTED] Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar/ A word is dead When it is said, Some say. I say it just Begins to live That day. Emily Dickinson 1872 ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: UU ministers arrested
Here is what another article said: Unitarian Universalist ministers Kay Greenleaf and Dawn Sangrey were charged with multiple counts of solemnizing a marriage without a license, the same charges leveled against New Paltz Mayor Jason West, who last month drew the state into the widening national debate over same-sex unions. http://www.washingtonpost.com/wp-dyn/articles/A60290-2004Mar15.html?nav=headlines -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8567 2900 Van Ness Street NW mailto:[EMAIL PROTECTED] Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar/ The aim of education must be the training of independently acting and thinking individuals who, however, see in the service to the community their highest life achievement. Albert Einstein ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
RE: UU ministers arrested
On Tue, 16 Mar 2004, Gene Summerlin wrote: Do you know what the criminal charge is? I could certainly envision the state refusing to recognize the marriages performed by the ministers or, perhaps, the state revoking the ministers licensure, but what is the criminal law which they have broken? My understanding is that New York law prohibits the solemnization of unlawful marriages, where solemnization is required (in addition to a license) for a civil marriage. Solemnization may be performed by religious or government officials. David B. Cruz Professor of Law University of Southern California Law School Los Angeles, CA 90089-0071 U.S.A. ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
RE: UU ministers arrested
NY CLS Dom Rel § 17 (2003) § 17. Clergyman or officer violating article; penalty If any clergyman or other person authorized by the laws of this state to perform marriage ceremonies shall solemnize or presume to solemnize any marriage between any parties without a license being presented to him or them as herein provided or with knowledge that either party is legally incompetent to contract matrimony as is provided for in this article he shall be guilty of a misdemeanor and on conviction thereof shall be punished by a fine not less than fifty dollars nor more than five hundred dollars or by imprisonment for a term not exceeding one year. I assume that the charges are brought based on the interpretation of the phrase with knowledge that either party is legally incompetent to contract matrimony as is provided for in this article. Christine Corcos Associate Professor of Law Paul M. Hebert Law Center, Louisiana State University Associate Professor, Women's and Gender Studies Program LSU AM W325 Law Building 1 East Campus Drive Baton Rouge LA 70803 tel: 225/578-8327 fax: 225/578-3677 home page: faculty.law.lsu.edu/ccorcos email: [EMAIL PROTECTED] David Cruz [EMAIL PROTECTED] To: [EMAIL PROTECTED], Law Religion issues for Law Academics Sent by:[EMAIL PROTECTED] [EMAIL PROTECTED] cc: (bcc: Christine A Corcos/ccorcos/LSU) ts.ucla.edu Subject: RE: UU ministers arrested 03/16/2004 11:33 AM Please respond to Law Religion issues for Law Academics On Tue, 16 Mar 2004, Gene Summerlin wrote: Do you know what the criminal charge is? I could certainly envision the state refusing to recognize the marriages performed by the ministers or, perhaps, the state revoking the ministers licensure, but what is the criminal law which they have broken? My understanding is that New York law prohibits the solemnization of unlawful marriages, where solemnization is required (in addition to a license) for a civil marriage. Solemnization may be performed by religious or government officials. David B. Cruz Professor of Law University of Southern California Law School Los Angeles, CA 90089-0071 U.S.A. ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Lofton/NRO Article
I agree with Mark's last post entirely except for at least one, perhaps two, minor points: (1) My argument does not say that there can be no IDer, just that given the facts of this world there can't be one or at least there isn't one given these facts. (2) His reference to the argument from evil or suffering as my argument. Would that I were so lucky or talented. Bobby Comment: H. More interesting presuppositions. The Joe Friday approach, eh? Just the facts. So, what/Who makes a fact a fact? And since there is no such thing as brute factuality, all facts are intrepreted facts, viwed through a grid of some kind, into some sort of frame of reference. So,on what basis, by what standard, do you say what you say re: the IDer you rule out? John Lofton. John Lofton 313 Montgomery St., Laurel, Maryland 20707 Home Phone: 301-490-7266 Work Phone: 410-766-8591 Cell Phone: 301-873-4612 Fax: 410-766-8592 Email: [EMAIL PROTECTED] [EMAIL PROTECTED] ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: UU ministers arrested
The New York Times story this morning quotes the prosecutor as saying that he recognized their right to perform a purely religious ceremony; the offense was that they had purported to exercise the authority vested in them by the State of New York to perform a legal ceremony. I don't know what evidence supports that -- whether they said something to that effect, or whether he is acting on a presumption about their intent. Assuming he adheres to that distinction and can prove his case consistent with it (and without a presumption of illegal intent), then I don't think there is a Religion Clause problem with the prosecution. I continue to believe that the Religion Clause problem is with the underlying structure of marriage law, that vests clergy with legal authority to perform marriages and that thoroughly commingles and confuses the distinction between marriage as a religious relationship (or sacrament, in some churches) and marriage as a legal relationship. This New Paltz prosecution would be unimaginable without that underlying joinder of the powers of church and state. On the other end of the political spectrum, gay leaders in San Francisco are quoted saying that legal recognition and the issuance of marriage licenses will make it hard for conservative churches to resist performing gay marriages. There is no reason that should be true; it is a bet on the pervasive confusion of the two relationships. When I first said it is unconstitutional for church and state to jointly administer a combined institution of religious and legal marriage, the point seemed pretty theoretical and ivory tower. But the further the controversy over same-sex marriage proceeds, the more practical consequences arise from that underlying unconstitutionality. There is no solution until we separate the religious relationship from the legal relationship. At 12:11 PM 3/16/2004 -0500, Steven Jamar wrote: Two Unitarian Universalist Ministers were arrested in NY for performing same-sex marriages under the power granted them by the state, not just as religious unions. Of course the typical faultlines are exposed - including claims of violation of separation of church and state. But surely that cannot be true - this is a simple case of a prosecutor interpreting the State and Federal Constitutions to permit this sort of gender discrimination in marriage - and so enforcing the law as he interprets it. What always strikes me as curious in these are the cries of upholding the law - as if the constitutions were not law, and indeed superior law at that. Anyway does anyone see an establishment problem with these prosecutions that I am missing? washington post article is at http://www.washingtonpost.com/wp-dyn/articles/A61436-2004Mar15.html Steve -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8567 2900 Van Ness Street NW mailto:[EMAIL PROTECTED] Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar/ A word is dead When it is said, Some say. I say it just Begins to live That day. Emily Dickinson 1872 br div___/div divTo post, send message to [EMAIL PROTECTED]/div divTo subscribe, unsubscribe, change options, or get password, see a href="" EUDORA=AUTOURLhttp://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw/a/div /blockquote/x-html Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 (voice) 512-471-6988 (fax) [EMAIL PROTECTED] ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: UU ministers arrested
Isn't there something conceptually odd about the charge "of solemnizing a marriage without alicense"? How is "solemnizing" used here? Further, if certain kinds of unions (S-S unions, for instance) areagainst the law in NY or do not count as "marriage,"it seems conceptually impossible to be guilty of this charge. Of course, the crime can be "attempting toperform a marriage," which presumably would be the case if whatever the ministers were doingwas attempted without the appropriatelicense. Is this right? BobbyRobert Justin LipkinProfessor of LawWidener University School of LawDelaware ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
RE: UU ministers arrested
Title: Message Seems to me like a pretty clear constitutional violation. The only things that the ministers did here was (1) say some words, which have no force of law, and (2) perform a religious ceremony, which may be seen as religiously binding by the parties but again has no legal significance. Nor is there any evidence of any intent to participate in a scheme of deceiving either party, or the world at large (as there might be if a minister presides over a marriage where one party is already married, and the minister knows this and the other party doesn't). How is a law banning such purely religious ceremonies that consist merely of speech any different from a law banning adult baptism, bar mitzvahs, ordinations, or any other similar ceremonies(unless the proper license is received, which may not be available for some people)? If some church took quite literally the notion of a woman marrying the church when she becomes a nun, and had what it called a marriage ceremony in which a woman marries an organization rather than a person, could the law possibly ban this on the grounds that it's illegal to marry corporations or other associations? Eugene -Original Message-From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Sent: Tuesday, March 16, 2004 10:37 AMTo: [EMAIL PROTECTED]Subject: Re: UU ministers arrested Isn't there something conceptually odd about the charge "of solemnizing a marriage without alicense"? How is "solemnizing" used here? Further, if certain kinds of unions (S-S unions, for instance) areagainst the law in NY or do not count as "marriage,"it seems conceptually impossible to be guilty of this charge. Of course, the crime can be "attempting toperform a marriage," which presumably would be the case if whatever the ministers were doingwas attempted without the appropriatelicense. Is this right? BobbyRobert Justin LipkinProfessor of LawWidener University School of LawDelaware ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
RE: UU ministers arrested
Title: Message What exactly does it mean to "purport to exercise the authority vested in [one] by the State of New York"? If the claim is that the clergyman is trying to defraud someone by claiming authority he doesn't have, that just seems incorrect on the facts. If the claim is that the clergyman is making an assertion about what he thinks is the proper understanding of the state constitution -- an assertion that everyone realizes is just an opinion, and one that they shouldn't rely on --and then engaging in speech and a religious ceremony based on that opinion, then how is the clergyman doing any more than exercising his First Amendment rights, even if the state courts disagree with that assertion? Eugene -Original Message-From: Douglas Laycock [mailto:[EMAIL PROTECTED] Sent: Tuesday, March 16, 2004 10:48 AMTo: Law Religion issues for Law AcademicsSubject: Re: UU ministers arrestedThe New York Times story this morning quotes the prosecutor as saying that he recognized their right to perform a purely religious ceremony; the offense was that they had purported to exercise the authority vested in them by the State of New York to perform a legal ceremony. I don't know what evidence supports that -- whether they said something to that effect, or whether he is acting on a presumption about their intent.Assuming he adheres to that distinction and can prove his case consistent with it (and without a presumption of illegal intent), then I don't think there is a Religion Clause problem with the prosecution.I continue to believe that the Religion Clause problem is with the underlying structure of marriage law, that vests clergy with legal authority to perform marriages and that thoroughly commingles and confuses the distinction between marriage as a religious relationship (or sacrament, in some churches) and marriage as a legal relationship. This New Paltz prosecution would be unimaginable without that underlying joinder of the powers of church and state.On the other end of the political spectrum, gay leaders in San Francisco are quoted saying that legal recognition and the issuance of marriage licenses will make it hard for conservative churches to resist performing gay marriages. There is no reason that should be true; it is a bet on the pervasive confusion of the two relationships.When I first said it is unconstitutional for church and state to jointly administer a combined institution of religious and legal marriage, the point seemed pretty theoretical and ivory tower. But the further the controversy over same-sex marriage proceeds, the more practical consequences arise from that underlying unconstitutionality. There is no solution until we separate the religious relationship from the legal relationship.At 12:11 PM 3/16/2004 -0500, Steven Jamar wrote: Two Unitarian Universalist Ministers were arrested in NY for performing same-sex marriages under the power granted them by the state, not just as religious unions. Of course the typical faultlines are exposed - including claims of violation of separation of church and state. But surely that cannot be true - this is a simple case of a prosecutor interpreting the State and Federal Constitutions to permit this sort of gender discrimination in marriage - and so enforcing the law as he interprets it. What always strikes me as curious in these are the cries of "upholding the law" - as if the constitutions were not law, and indeed superior law at that. Anyway does anyone see an establishment problem with these prosecutions that I am missing? washington post article is at http://www.washingtonpost.com/wp-dyn/articles/A61436-2004Mar15.html Steve -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8567 2900 Van Ness Street NW mailto:[EMAIL PROTECTED] Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar/ A word is dead When it is said, Some say. I say it just Begins to live That day. Emily Dickinson 1872 brdiv___/divdivTo post, send message to [EMAIL PROTECTED]/divdivTo subscribe, unsubscribe, change options, or get password, see a href="" EUDORA=AUTOURLhttp://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw/a/div/blockquote/x-html Douglas LaycockUniversity of Texas Law School727 E. Dean Keeton St.Austin, TX 78705512-232-1341 (voice)512-471-6988 (fax)[EMAIL PROTECTED] ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: UU ministers arrested
Since the reports are not done by the folk on this list it is sometimes hard to be sure of the facts in the way we would like to be. But after spending way to much time drifting around on this, I think this much is correct (but am definitely not going to stand by it as fully correct- no doubt more will come clear later). 1. The ministers performed a religious ceremony. 2. The ministers intended to also perform the civil marriage under their authority to do so as granted by the state. 3. The two celebrants did not present a valid marriage license (if they presented one at all, it could not be a valid one since they were of the same sex). 4. The ministers assert that the marriage is binding both as a religious matter and on the State of New York. This last point is based on various news reports and requires some inference on my part. 5. NY Law makes it a crime to marry people who do not have a state-granted license to do so. 6. The ministers did so anyway. 7. The prosecutor could have taken the approach of these marriages will not be recognized by any state or other entity, and so they are just symbolic and are void as a matter of civil law, so either, no law was in fact broken, or if it was, it ought not be prosecuted. But he didn't. He chose to escalate the issue. Steve -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8428 2900 Van Ness Street NW mailto:[EMAIL PROTECTED] Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar Our scientific power has outrun our spiritual power. We have guided missiles and misguided man. - Martin Luther King Jr., Strength to Love, 1963 ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: UU ministers arrested
I'm still thinking about this,Doug. Let me ask -- do you think there would be a constitutional violation under a constitutional regime that protected the free exercise of religion against neutral laws of general applicability? The clergy in question would be asking for an exemption from the law that prohibits the legal solemnizing of same sex marriages. Suppose a religious high school wants the degree it confers on graduates to be recognized as a high school diploma for legal purposes. The state refuses to recognize it because the state disagrees with some aspect of the religious school's curriculum. Under an rigorously enforced free exercise principle (similar to the one adopted in RFRA), does the state bear some burden of justification to explain why the education provided at the religious school does not deserve the same recognition that the education provided at other public and private religious schools receive. Is it enough for the state to simply state, we have this criteria and the religious school did not satisfy it. Or must the state defend its criteria under some rigorous level of review? Or to put the question another way, given the clear religious foundation underlying the state's commitment to marriage being limited to a man and woman, don't faith communities that recognize same-sex marriages deserve more of a showing than a rational basis from the state to explain why the marriage ceremonies performed by their clergy do not receive legal recognition while the ceremonies performed by the clergy of other faiths receive such recognition. Alan Brownstein UC Davis At 12:48 PM 3/16/2004 -0600, you wrote: The New York Times story this morning quotes the prosecutor as saying that he recognized their right to perform a purely religious ceremony; the offense was that they had purported to exercise the authority vested in them by the State of New York to perform a legal ceremony. I don't know what evidence supports that -- whether they said something to that effect, or whether he is acting on a presumption about their intent. Assuming he adheres to that distinction and can prove his case consistent with it (and without a presumption of illegal intent), then I don't think there is a Religion Clause problem with the prosecution. I continue to believe that the Religion Clause problem is with the underlying structure of marriage law, that vests clergy with legal authority to perform marriages and that thoroughly commingles and confuses the distinction between marriage as a religious relationship (or sacrament, in some churches) and marriage as a legal relationship. This New Paltz prosecution would be unimaginable without that underlying joinder of the powers of church and state. On the other end of the political spectrum, gay leaders in San Francisco are quoted saying that legal recognition and the issuance of marriage licenses will make it hard for conservative churches to resist performing gay marriages. There is no reason that should be true; it is a bet on the pervasive confusion of the two relationships. When I first said it is unconstitutional for church and state to jointly administer a combined institution of religious and legal marriage, the point seemed pretty theoretical and ivory tower. But the further the controversy over same-sex marriage proceeds, the more practical consequences arise from that underlying unconstitutionality. There is no solution until we separate the religious relationship from the legal relationship. At 12:11 PM 3/16/2004 -0500, Steven Jamar wrote: Two Unitarian Universalist Ministers were arrested in NY for performing same-sex marriages under the power granted them by the state, not just as religious unions. Of course the typical faultlines are exposed - including claims of violation of separation of church and state. But surely that cannot be true - this is a simple case of a prosecutor interpreting the State and Federal Constitutions to permit this sort of gender discrimination in marriage - and so enforcing the law as he interprets it. What always strikes me as curious in these are the cries of upholding the law - as if the constitutions were not law, and indeed superior law at that. Anyway does anyone see an establishment problem with these prosecutions that I am missing? washington post article is at http://www.washingtonpost.com/wp-dyn/articles/A61436-2004Mar15.htmlhttp://www.washingtonpost.com/wp-dyn/articles/A61436-2004Mar15.html Steve -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8567 2900 Van Ness Street NW mailto:[EMAIL PROTECTED]mailto:[EMAIL PROTECTED] Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar/http://www.law.howard.edu/faculty/pages/jamar/ A word is dead When it is said, Some say. I say it just Begins
RE: UU ministers arrested
It is fairly common for older people top be married in a religious ceremony but not seek official registration as married couple for purposes of avoiding Medicaid taking property to pay for the care of the new spouse. IF the state does not enforce it s laws in those cases, can it do so here? Marc Stern -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Behalf Of Steven Jamar Sent: Tuesday, March 16, 2004 1:13 PM To: Law Religion issues for Law Academics Subject: Re: UU ministers arrested Thanks Christine - though I believe it is the lack of a marriage license being presented clause that is at stake here. http://www.poughkeepsiejournal.com/tuesday/localnews/stories/ lo031604s3.shtml Steve On Tuesday, March 16, 2004, at 12:57 PM, Christine A Corcos wrote: NY CLS Dom Rel § 17 (2003) § 17. Clergyman or officer violating article; penaltyclergyman or other person authorized by the laws of this state to perform marriage ceremonies shall solemnize or presume to solemnize any marriage between any parties without a license being presented to him or them as herein provided or with knowledge that either party is legally incompetent to contract matrimony as is provided for in this article he shall be guilty of a misdemeanor and on conviction thereof shall be punished by a fine not less than fifty dollars nor more than five hundred dollars or by imprisonment for a term not exceeding one year. I assume that the charges are brought based on the interpretation of the phrase with knowledge that either party is legally incompetent to contract matrimony as is provided for in this article. Christine Corcos Associate Professor of Law Paul M. Hebert Law Center, Louisiana State University Associate Professor, Women's and Gender Studies Program -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8428 2900 Van Ness Street NW mailto:[EMAIL PROTECTED] Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar I am in Birmingham because injustice is here. . . . Injustice anywhere is a threat to justice everywhere. Martin Luther King, Jr., (1963) ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: UU ministers arrested
I have trouble thinking through what the rules should be when the starting premise is some version of uniting religious and legal marriage. But I think I can pose your question free of that. Whether or not pastors are deputized to perform legal marriages, suppose the state says we will recognize relationships that satisfy the legal definition of marriage. That definition is limited to one-man, one-woman. And then Unitarians say, under a state RFRA or state free exercise clause, that definition excludes same-sex Unitarian marriages. And you have to have a compelling interest for not recognizing our marriages. I think that claim usually fails, because the same-sex marriage is not motivated by religious belief. It is motivated by same-sex desire, and then blessed by a sympathetic religious organization. The after-the-fact religious blessing cannot convert it into a RFRA claim. At 12:01 PM 3/16/2004 -0800, you wrote: I'm still thinking about this,Doug. Let me ask -- do you think there would be a constitutional violation under a constitutional regime that protected the free exercise of religion against neutral laws of general applicability? The clergy in question would be asking for an exemption from the law that prohibits the legal solemnizing of same sex marriages. Suppose a religious high school wants the degree it confers on graduates to be recognized as a high school diploma for legal purposes. The state refuses to recognize it because the state disagrees with some aspect of the religious school's curriculum. Under an rigorously enforced free exercise principle (similar to the one adopted in RFRA), does the state bear some burden of justification to explain why the education provided at the religious school does not deserve the same recognition that the education provided at other public and private religious schools receive. Is it enough for the state to simply state, we have this criteria and the religious school did not satisfy it. Or must the state defend its criteria under some rigorous level of review? Or to put the question another way, given the clear religious foundation underlying the state's commitment to marriage being limited to a man and woman, don't faith communities that recognize same-sex marriages deserve more of a showing than a rational basis from the state to explain why the marriage ceremonies performed by their clergy do not receive legal recognition while the ceremonies performed by the clergy of other faiths receive such recognition. Alan Brownstein UC Davis At 12:48 PM 3/16/2004 -0600, you wrote: The New York Times story this morning quotes the prosecutor as saying that he recognized their right to perform a purely religious ceremony; the offense was that they had purported to exercise the authority vested in them by the State of New York to perform a legal ceremony. I don't know what evidence supports that -- whether they said something to that effect, or whether he is acting on a presumption about their intent. Assuming he adheres to that distinction and can prove his case consistent with it (and without a presumption of illegal intent), then I don't think there is a Religion Clause problem with the prosecution. I continue to believe that the Religion Clause problem is with the underlying structure of marriage law, that vests clergy with legal authority to perform marriages and that thoroughly commingles and confuses the distinction between marriage as a religious relationship (or sacrament, in some churches) and marriage as a legal relationship. This New Paltz prosecution would be unimaginable without that underlying joinder of the powers of church and state. On the other end of the political spectrum, gay leaders in San Francisco are quoted saying that legal recognition and the issuance of marriage licenses will make it hard for conservative churches to resist performing gay marriages. There is no reason that should be true; it is a bet on the pervasive confusion of the two relationships. When I first said it is unconstitutional for church and state to jointly administer a combined institution of religious and legal marriage, the point seemed pretty theoretical and ivory tower. But the further the controversy over same-sex marriage proceeds, the more practical consequences arise from that underlying unconstitutionality. There is no solution until we separate the religious relationship from the legal relationship. At 12:11 PM 3/16/2004 -0500, Steven Jamar wrote: Two Unitarian Universalist Ministers were arrested in NY for performing same-sex marriages under the power granted them by the state, not just as religious unions. Of course the typical faultlines are exposed - including claims of violation of separation of church and state. But surely that cannot be true - this is a simple case of a prosecutor interpreting the State
Re: UU ministers arrested
Title: Message I heard an interview with the two ministers earlier today. One claimed that the civil officer (mayor? judge?) was overwhelmed with the number of people wanting to be married. The minister offered to take on the task of performing the ceremony for some of the couples. She claims that she did not know she was doing anything wrong. Bob - Original Message - From: Volokh, Eugene To: Law Religion issues for Law Academics Sent: Tuesday, March 16, 2004 1:56 PM Subject: RE: UU ministers arrested What exactly does it mean to "purport to exercise the authority vested in [one] by the State of New York"? If the claim is that the clergyman is trying to defraud someone by claiming authority he doesn't have, that just seems incorrect on the facts. If the claim is that the clergyman is making an assertion about what he thinks is the proper understanding of the state constitution -- an assertion that everyone realizes is just an opinion, and one that they shouldn't rely on --and then engaging in speech and a religious ceremony based on that opinion, then how is the clergyman doing any more than exercising his First Amendment rights, even if the state courts disagree with that assertion? Eugene -Original Message-From: Douglas Laycock [mailto:[EMAIL PROTECTED] Sent: Tuesday, March 16, 2004 10:48 AMTo: Law Religion issues for Law AcademicsSubject: Re: UU ministers arrestedThe New York Times story this morning quotes the prosecutor as saying that he recognized their right to perform a purely religious ceremony; the offense was that they had purported to exercise the authority vested in them by the State of New York to perform a legal ceremony. I don't know what evidence supports that -- whether they said something to that effect, or whether he is acting on a presumption about their intent.Assuming he adheres to that distinction and can prove his case consistent with it (and without a presumption of illegal intent), then I don't think there is a Religion Clause problem with the prosecution.I continue to believe that the Religion Clause problem is with the underlying structure of marriage law, that vests clergy with legal authority to perform marriages and that thoroughly commingles and confuses the distinction between marriage as a religious relationship (or sacrament, in some churches) and marriage as a legal relationship. This New Paltz prosecution would be unimaginable without that underlying joinder of the powers of church and state.On the other end of the political spectrum, gay leaders in San Francisco are quoted saying that legal recognition and the issuance of marriage licenses will make it hard for conservative churches to resist performing gay marriages. There is no reason that should be true; it is a bet on the pervasive confusion of the two relationships.When I first said it is unconstitutional for church and state to jointly administer a combined institution of religious and legal marriage, the point seemed pretty theoretical and ivory tower. But the further the controversy over same-sex marriage proceeds, the more practical consequences arise from that underlying unconstitutionality. There is no solution until we separate the religious relationship from the legal relationship.At 12:11 PM 3/16/2004 -0500, Steven Jamar wrote: Two Unitarian Universalist Ministers were arrested in NY for performing same-sex marriages under the power granted them by the state, not just as religious unions. Of course the typical faultlines are exposed - including claims of violation of separation of church and state. But surely that cannot be true - this is a simple case of a prosecutor interpreting the State and Federal Constitutions to permit this sort of gender discrimination in marriage - and so enforcing the law as he interprets it. What always strikes me as curious in these are the cries of "upholding the law" - as if the constitutions were not law, and indeed superior law at that. Anyway does anyone see an establishment problem with these prosecutions that I am missing? washington post article is at http://www.washingtonpost.com/wp-dyn/articles/A61436-2004Mar15.html Steve -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8567 2900 Van Ness Street NW mailto:[EMAIL PROTECTED] Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar/ A word is dead When it is said, Some say. I say it just Begins to live That day. Emily Dickinson 1872 brdiv___/divdivTo post, send
RE: UU ministers arrested
I'm not certain on this question, but I have doubts about Eugene's argument that this is simply religious speech or a religious ritual, analogous to a ceremony marrying a nun to the Church. In the news reports I have read, the prosecutors have conceded that they cannot prosecute clergy for performing religious ceremonies (nor, I myself would add, for calling them marriages). The prosecutors have said that the problem is that the clergy performed the ceremonies as if they were, and asserted throughout that they were, valid civil marriages. Eugene, do your arguments entail that the mayors of San Francisco and New Paltz likewise cannot be constitutionally prosecuted (or disciplined, if that's possible) for performing same-sex marriages and claiming them to be valid civil marriages? They likewise might not be trying to defraud anyone in any direct sense, and they appear to be relying on their interpretation of the respective state constitutions. And the distinction that they are government officials while the clergymen are not does not have so much force here when the clergy, like the mayors, play an official role in a state-sanctioned institution (which, admittedly, may provide further support for Doug's argument that we ought to separate the two roles altogether). The clergymen have uttered words, yes, but the words include (essentially) this is a valid civil marriage. That is a misstatement of fact (if we look at the marriage statute -- I'll consider the state constitutions in a minute). I am not sure that the absence of an intent to defraud anyone is determinative. In libel cases, the First Amendment standard is simply that the defendant knows that (or recklessly disregards that) the statement is untrue; there is no further requirement that the defendant intend to cause harm. The theory is that clear misstatements of fact have little or no First Amendment value and we are not worried about any chilling effect when the falsehood is knowing. Likewise, what is the First Amendment value in a clergyman stating this is a legally valid civil marriage when, under current statutory law, it clearly is not? The best answer is that this is the clergyman's interpretation of the state constitution and that is a matter of opinion rather than fact (for now, until the courts rule on the claim). But that leads, in my view, into a different way of looking at the case. Essentially, what the clergymen (and the mayors) are doing is violating the current, opposite-sex-only marriage statute in order to raise the legal question whether the statute violates the state constitution (as well as the moral question whether it is just). Within that framework, isn't the general rule that if the law is unconstitutional, then the violator can't be punished for violating it -- but if the law is constitutional, the violator can be punished? So whether the clergymen's acts are protected turns on whether the current opposite-sex-only marriage law is unconstitutional -- whereas under Eugene's argument, the clergymen are protected even if the current marriage law ultimately is deemed constitutional. Another way to put this is that performing these marriages is not merely speech, but is an act -- an act that is part and parcel of a challenge to the current marriage laws. While the clergymen may not intend to defraud anyone directly, their action in performing same-sex marriages in their official capacity, marriages that they assert to be civilly valid, is part of an overall effort to make such marriages civilly valid. It is quite likely that some couples in these ceremonies will take the documents signed by the clergy to other states and claim valid civil marriages in those states because of full faith and credit (hasn't this already happened with some of the San Francisco marriages?). Or they will claim spousal benefits from the state or from private employers. These ceremonies by the clergy therefore are quite likely to have effects beyond those that a purely religious ritual would have; it's obviously quite different from a ceremony marrying a nun to the Church. Under these circumstances, I'm not convinced that what these clergy have done is simply speech or a religious ritual and therefore is protected even if the current marriage laws are ultimately deemed constitutional. I have a similar response to Alan's argument. Yes, both the clergy and some same-sex couples (the religiously motivated ones) have legal claims that the state's refusal to recognize these marriages as civilly valid violates a state free exercise or RFRA standard. But they can raise those challenges by refraining from performing the marriages as civil marriages, and then suing to declare the current marriage statutes unconstitutional or violative of a RFRA. It does not follow that the clergy should be able to perform them as valid civil marriages, make that assertion throughout as part of a challenge to the current marriage laws, and then claim
Re: Lofton/Bobby
Title: Re: Lofton/Bobby Bobby: I dont know what thinkers you have been reading. But the sorts of arguments that you seem to attribute to ID advocates are not what dominate the literature. Let me recommend that you take a look at my work on this, which is published on my webiste: http://francisbeckwith.com. I provide a cursory overview of the literature. Just as an aside, you may not realize it, but when you assess that some aspect of the world is not consistent with what is good, the warrant for your judgment depends on the premise that you in fact know the good. But if you know the good, that means that you have awareness of an immaterial reality, an ideal by which you judge other things. Now, if you deny that you know this, then your judgment of the world has no warrant, and thus the problem of evil is no problem since there is no good by which to measure the world and make that judgment. Now, Eugene, what does that have to do with law? (I know youre watching from your Gods eye point of view) A lot, for it gets to the heart of how one may justify a law whose purpose is to remedy an injustice. What are the grounds for such a judgment? Must such a judgment be purely naturalistic in order to not violate the Establishment Clause? Or could one offer an ethical judgment based on some immaterial property had by human beings that cannot be verified empirically, e.g., equality, intrinsic value, etc. It seems to me that if one buys into whole naturalistic worldview, you cant borrow from resources that can only be gotten from a robust theism. Take care, Frank On 3/16/04 5:36 PM, [EMAIL PROTECTED] [EMAIL PROTECTED] wrote: The questions John Lofton asks have been examined ad nauseam by philosophers and theologians and have intrigued us ordinary people for generations. Thus, complete answers to John's questions are unlikely in this venue. Nevertheless, he deserves at least rough outlines of answers. Here they are: The meaning of intelligence should be answered by those asserting the existence of an IDer. If the IDer is omniscient he or she must be intelligent. So, how does the proponent of ID theory understand 'intelligence'? My position attacks the compatibility of the existence of an omniscient, omnipotent, and morally perfect IDer and the existence of evil and suffering. Without assigning a burden of proof here, I don't think it's fair to require me to explain these terms. Moreover, even barring the omni predicates. ID theory says there exists or could exist an intelligent designer. Presumably, the proponents of this theory are using the ordinary conception of intelligence which, I suppose, includes problem solving, being able to use means-ends reasoning, providing explanations and justifications, and if one is perfectly intelligent one knows what consequences follow from which actions, and so forth. What is morally perverse, for me, is causing or contributing to the suffering of people or the indifference to their suffering when one has the capacity to eliminate it. (Of course, we will, as we should, disagree over which examples are true cases of suffering, but we all know paradigm cases of suffering and cruelty.) The insistence that one answer the question of morality's origination confuses the context of discovery with the context of justification. I do not know where morality came from. However, two explanations are certainly possible. First, it was divinely inspired and, as Robert Bork insists, secular morality rests on the moral capital of religion. Or it arose when people realized that suffering and cruelty just wasn't compatible with survival or living a decent life according to the lights of the people living at that time). Then religion codified this morality and provided a narrative explaining the a source that certainly at one time and still today people found/find convincing. If this latter explanation is true, one can say religion rests on the moral capital of secular morality. But it is certainly beyond my expertise to engage seriously in this crude form of anthropology. The problem is that when the idea of an IDer is combined with the omni predicates and moral perfection, this conception, in my view, is logically incompatible with the existence of evil and suffering. That is, there should not be evil or suffering in the world. But there is; hence, the problem. These omni predicates disallow commonplace explanations of cruelty or the infliction of suffering, or more important, failing to act. In short, any human being might be excused for not alleviating suffering either because he or she lacked the knowledge, power, or moral character to alleviate the suffering or to eliminate suffering. An IDer described with the omni predicates and moral perfection, does not, in my view, have the luxury of being excused. The idea of excuse is inapplicable to such a being. We are often unforgiving of our brothers and sisters when their failure to act causes great suffering. In my view, I
RE: UU ministers arrested
I appreciate, as always, Tom's thoughtful arguments; but let me explain why I at least tentatively disagree. (1) MISSTATEMENTS OF FACT. I think that indeed if the clergy are saying This is a valid civil marriage, they are not expressing a fact; they're expressing an opinion. An analogy: If right after you woke up the morning after Election Day 2000, and someone told you Al Gore is the new lawfully elected President-elect, that would likely have been a false statement of fact. If someone called you that morning and said Now that Al Gore is the new President-elect, I'd like you to contribute $1000 to a Democratic Party event for the inauguration, he would likely have been committing fraud. But if today someone tells you Al Gore is the lawfully elected President, it's not a false statement of fact about the political system, precisely because everyone knows that it's not true (at least in the sense that less controversial statements such as William Rehnquist is the lawfully selected Chief Justice are true). Rather, in context it's a statement of opinion -- a judgment about what should be true under The Right Understanding Of The Law As I See It, and a statement of defiance of the existing legal institutions' views. Likewise, I think for the clergy's statements here. (2) PUNISHING THE CLERGY FOR VIOLATING A VALID LAW: Now the question is whether the expression of this opinion leaves the clergy open to punishment for violating a valid law. Tom says yes -- but I don't see why. There is a valid law that says that New York doesn't recognize same-sex marriages; but that's not a law that the clergy can violate. There is also a law that bars people from solemnizing marriages that aren't recognized in New York, where solemnization is defined as performing a particular ceremony, a ceremony that consists, as I understand it, entirely of speech and often of religious practice. But I don't see how New York can ban such speech and religious practice; it is *that* law, which bars the clergy from solemnizing the marriage -- which, as #1 suggests, simply involves saying various words including expressing the opinion that under The Right Understanding Of The Law As I See It the marriages are valid -- that is invalid. (3) ACT. But, Tom suggests, the difference is that the solemnization isn't just speech, but is an act. What justification is there, though, for taking something that was literally speech -- the ceremony was entirely speech (plus perhaps a kiss or two, but I doubt that this makes a difference) -- and then treating as not speech under the First Amendment? If the speech involved false statements of fact that people would really be deceived by, then that would be punishable speech; but as I mentioned, the speech here seems to be, in context, opinion plus some other things that aren't false statements of fact. Nor is it even speech that has the effect of creating a legal relationship, since the whole point is that it *doesn't* have that legal effect. So I don't see how the act argument works here. (4) FUTURE LIKELY ACTIONS OF THE COUPLE. Tom suggests that perhaps the clergy solemnization should be seen as an unprotected act rather than protected speech because at some time in the future the couples are likely to use the ceremony as the basis for future legal claims, such as attempts to get Full Faith and Credit Clause recognition for the marriage. But why should this matter? Those future actions wouldn't even be illegal themselves, so it's not even that the clergy are somehow aiding and abetting future illegal behavior: An attempt to get Full Faith and Credit Clause recognition for the New York marriage from, say, a New Jersey court would be an interesting, though doomed lawsuit; the New Jersey court would be perfectly capable of recognizing that the marriage wasn't a valid New York marriage, even though at the time a clergyman conveyed his opinion that under The Right Understanding Of The Law As He Sees It the marriages were valid. No problem, and no reason to treat the clergyman's speech as anything but speech. (5) WHAT ABOUT THE MAYORS? Finally, to Tom's question about what the mayors may be punished for: I'm not positive that they could or should be punished, but the best theory for punishing them (probably not criminally) is that they are government officials, and the government is therefore entitled to constrain their speech in some measure. (Bond v. Floyd, of course, suggests that elected government officials aren't subject to the relaxed Pickering level of protection available for ordinary employees, in which case perhaps the mayors shouldn't be punished.) But even though the clergy do have some minor government power delegated them here, it seems to me that this is not nearly enough to justify such a different standard of First Amendment protection -- they're still fundamentally private citizens; and precisely
RE: UU ministers arrested
On Tue, 16 Mar 2004, Volokh, Eugene wrote: [snip] (2) PUNISHING THE CLERGY FOR VIOLATING A VALID LAW: Now the question is whether the expression of this opinion leaves the clergy open to punishment for violating a valid law. Tom says yes -- but I don't see why. There is a valid law that says that New York doesn't recognize same-sex marriages; but that's not a law that the clergy can violate. There is also a law that bars people from solemnizing marriages that aren't recognized in New York, where solemnization is defined as performing a particular ceremony, a ceremony that consists, as I understand it, entirely of speech and often of religious practice. But I don't see how New York can ban such speech and religious practice; it is *that* law, which bars the clergy from solemnizing the marriage -- which, as #1 suggests, simply involves saying various words including expressing the opinion that under The Right Understanding Of The Law As I See It the marriages are valid -- that is invalid. [snip] I have written and still believe that civil marriage itself is an expressive resource, used by private couples, the distribution of which is constrained by the First Amendment. That noted, here is one place where it seems -- and my tentativeness is intentional -- that a government speech argument might be apt. As I understand solemnization, which I have not yet studied extensively, it is something said or done on behalf of the government. Thus, if it's not conduct but speech, it is speech done by the deputies or agents of the government. When people purport to be exercising 'authority vested in [them] by the State of New York,' wouldn't they literally be speaking for the state? If so, then why couldn't the state impose misdemeanor sanctions for misspeaking for the government? Cf. Rust v. Sullivan (holding that government may take steps to make sure its message is not garbled). Now, this would raise at least two big issues for me. The first is whether the facts of what the clergy at issue did/said sufficiently clearly support the government characterization to avoid any unconstitutional chilling of bona fide private (and in this case religious) speech. The second and related point is whether Doug Laycock isn't right that there is something troublesome about such a fusion of governmental and religious authority. I had previously thought that perhaps allowing clergy to perform the government's solemnization function might be justifiable as a form of accommodation, at least loosely speaking. Many people who marry will do so before clergy, and allowing clergy to solemnize thus spares the marrying couple the need to go get a separate solemnization from a government official. We might need to read such statutes with Seeger/Welch broadness to avoid religious favoritism (as I suspect that some marriages are officiated by nongovernmental yet nonreligious private parties). But, even if we did, do prosecutions such as New York's suggest that there is an improper entanglement of religion and government when it comes to solemnization of marriages? David B. Cruz Professor of Law University of Southern California Law School Los Angeles, CA 90089-0071 U.S.A. ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
RE: UU ministers arrested
I think that if someone falsely claims to be exercising legal authority *and people are likely to be deceived into believing that he is*, then indeed the state could impose sanctions for misspeaking for the government. But here everyone knows that the minister doesn't have legal authority. In this context, any claim of legal authority will clearly not be seen as a factual assertion -- the government is blessing this marriage. Rather, it would be seen as a statement of opinion: Based on how I think the Constitution should be interpreted, this ought to be seen as a valid marriage under the law. I'm pretty sure that this is exactly how the people who participated in the weddings, saw the weddings, and heard about the weddings, understood the statements. No-one actually thought that the judge was literally speaking for the state, precisely because everyone knew that the state doesn't recognize the marriage that the minister ostensibly solemnized. A hypothetical: Imagine that there is a play in which a minister goes through a marriage ceremony for a same-sex couple, and says the authority vested in me by the State of New York line. Illegal? I don't think so, because it's clear to everyone that in fact the minister isn't really exercising government authority, or creating a legally recognized marriage. The same-sex wedding ceremony is different because the parties are engaging in a religious marriage, and the parties and the minister would like the marriage to be legally recognized as a marriage. But it's equally clear to everyone that in fact the minister isn't really exercising government authority, or creating a legally recognized marriage. Both the play and the actual marriage ceremony, I think, are fully protected speech. They aren't punishable on a misspeaking for the government rationale because it's clear to everyone that no-one is actually speaking on the government's behalf, even if the authority vested in me by the State of New York line is said. Eugene David Cruz writes: As I understand solemnization, which I have not yet studied extensively, it is something said or done on behalf of the government. Thus, if it's not conduct but speech, it is speech done by the deputies or agents of the government. When people purport to be exercising 'authority vested in [them] by the State of New York,' wouldn't they literally be speaking for the state? If so, then why couldn't the state impose misdemeanor sanctions for misspeaking for the government? Cf. Rust v. Sullivan (holding that government may take steps to make sure its message is not garbled). Now, this would raise at least two big issues for me. The first is whether the facts of what the clergy at issue did/said sufficiently clearly support the government characterization to avoid any unconstitutional chilling of bona fide private (and in this case religious) speech. . . . ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
New York law banning even purely religious same-sex marriage ceremonies?
I took a closer look at the New York statutes, and heres what I found: Domestic Relations Law sec. 12 provides that No particular form or ceremony is required when a marriage is solemnized as herein provided by a clergyman or magistrate, but the parties must solemnly declare in the presence of a clergyman or magistrate and the attending witness or witnesses that they take each other as husband and wife. In every case, at least one witness beside the clergyman or magistrate must be present at the ceremony. Domestic Relations Law sec. 17 provides that If any clergyman or other person authorized by the laws of this state to perform marriage ceremonies shall solemnize or presume to solemnize any marriage between any parties without a license being presented to him or them as herein provided or with knowledge that either party is legally incompetent to contract matrimony as is provided for in this article he shall be guilty of a misdemeanor . . . . Penal Law sec. 255.00 provides that A person is guilty of unlawfully solemnizing a marriage[, a misdemeanor,] when: 1. Knowing that he is not authorized by the laws of this state to do so, he performs a marriage ceremony or presumes to solemnize a marriage; or 2. Being authorized by the laws of this state to perform marriage ceremonies and to solemnize marriages, he performs a marriage ceremony or solemnizes a marriage knowing that a legal impediment to such marriage exists. Given this is so, wouldnt the minister be guilty simply by performing a religious marriage ceremony in which the parties solemnly declare (in front of the clergyman and at least one witness) that they take each other as husband and wife? It seems to me that the ministers performing the ceremony -- which, I stress again, simply involves speaking -- would be a crime whether or not he says by the authority vested in me by the State of New York. The statute draws no distinction between marriages intended to be purely religious marriages and those intended to have legal significance. Or am I misreading the statutes? Eugene ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: New York law banning even purely religious same-sex marriage ceremonies?
Does this law lead to the conclusion that the state should get out of the business to telling members of the clergy who they can marry. Let the state create legal unions, as in France, and let the clergy marry whoever the clergy want to marry? Paul Finkelman Volokh, Eugene wrote: I took a closer look at the New York statutes, and heres what I found: Domestic Relations Law sec. 12 provides that No particular form or ceremony is required when a marriage is solemnized as herein provided by a clergyman or magistrate, but the parties must solemnly declare in the presence of a clergyman or magistrate and the attending witness or witnesses that they take each other as husband and wife. In every case, at least one witness beside the clergyman or magistrate must be present at the ceremony. Domestic Relations Law sec. 17 provides that If any clergyman or other person authorized by the laws of this state to perform marriage ceremonies shall solemnize or presume to solemnize any marriage between any parties without a license being presented to him or them as herein provided or with knowledge that either party is legally incompetent to contract matrimony as is provided for in this article he shall be guilty of a misdemeanor . . . . Penal Law sec. 255.00 provides that A person is guilty of unlawfully solemnizing a marriage[, a misdemeanor,] when: 1. Knowing that he is not authorized by the laws of this state to do so, he performs a marriage ceremony or presumes to solemnize a marriage; or 2. Being authorized by the laws of this state to perform marriage ceremonies and to solemnize marriages, he performs a marriage ceremony or solemnizes a marriage knowing that a legal impediment to such marriage exists. Given this is so, wouldnt the minister be guilty simply by performing a religious marriage ceremony in which the parties solemnly declare (in front of the clergyman and at least one witness) that they take each other as husband and wife? It seems to me that the ministers performing the ceremony -- which, I stress again, simply involves speaking -- would be a crime whether or not he says by the authority vested in mee by the State of New York. The statute draws no distinction between marriages intended to be purely religious marriages and those intended to have legal significance. Or am I misreading the statutes? Eugene ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw -- 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] ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
