Arresting clergy for performing same-sex marriages:

The Poughkeepsie Journal reports:

[T]wo ministers were charged Monday with 13 counts of marrying gay couples in New Paltz 10 days ago.

But experts said Ulster County District Attorney Donald Williams’ reasoning in bringing the charges against two Unitarian Universalist ministers for performing 13 such ceremonies on March 6 carefully treads the line separating church and state.

Williams said in a written statement that the charges arise solely because the ministers — the Rev. Kay Greenleaf of Poughkeepsie and the Rev. Dawn Sangrey of Bedford Hills, Westchester County — performed the ceremonies under authority vested in them by the state, rather than performing religious ceremonies. Solemnizing marriage ceremonies between unlicensed couples, regardless of sexual orientation is in direct violation of state law, he said.

Instead of government encroaching on religious life, it appears the ministers have jumped into the public policy debate with their actions, said Vincent Bonventre, a professor at Albany Law School.

”They’re not only acting as ministers, they’re acting as state-authorized officials,” Bonventre said. ”If clergy want to perform religious marriages, they’re perfectly free to do that. In terms of saying, ‘We’re doing this as state officials and performing a state marriage,’ they really are now entering into the realm of government.” . . .

     I don’t agree with this analysis; I think the arrests are quite unsound. Clergy are not in fact state officials. They are indeed delegated a certain degree of government power (potentially itself troublesome, though certainly historically well-sanctioned). But here the government’s point is that this power doesn’t include the power to engage in same-sex marriage. The ministers are therefore not exercising government power. Nor are they likely to dupe anyone (either the parties to the marriage, or bystanders) into thinking that the marriage is valid — there’s no danger that people will wrongly think the ministers have indeed exercised government power. Everyone knows that the ceremony is purely a combination of religious ceremony and political protest, and not the actual creation of a governmentally recognized marriage.

     Rather, the ministers are doing two things: (1) speaking certain words, and (2) performing a religious ceremony while doing so. The only thing that makes a minister’s conducting a same-sex marriage into purportedly illegal “solemnization” is that it involves words being said by a minister.

     It seems to me that this can’t constitutionally be a basis for prosecution, at least in the absence of some fraud or complicity in fraud on the minister’s part (which would make the speech into constitutionally unprotected speech). And, I stress again, there is no fraud here: Any “by the power vested me in the State of New York” line would clearly be understood as an expression of the minister’s opinion about what the New York Constitution, properly understood, ought to mean, not as an attempt to fool anyone into believing something that is factually untrue.

     Finally, note that this sort of punishment of clergy for their marriage practices, if accepted, could go both ways. As I mentioned in a post this March 1:

Texas Family Code, Chapter 2 (“The Marriage Relationship”), Subchapter C (“Ceremony and Return of License”) provides, in relevant part:

[sec.] 2.202. Persons Authorized to Conduct Ceremony

(a) The following persons are authorized to conduct a marriage ceremony:
(1) a licensed or ordained Christian minister or priest;
(2) a Jewish rabbi;
(3) a person who is an officer of a religious organization and who is authorized by the organization to conduct a marriage ceremony; and
(4) a justice of the supreme court, judge of the court of criminal appeals, justice of the courts of appeals, judge of the district, county, and probate courts, judge of the county courts at law, judge of the courts of domestic relations, judge of the juvenile courts, retired justice or judge of those courts, justice of the peace, retired justice of the peace, or judge or magistrate of a federal court of this state. . . .

[sec.] 2.205. Discrimination in Conducting Marriage Prohibited

(a) A person authorized to conduct a marriage ceremony by this subchapter is prohibited from discriminating on the basis of race, religion, or national origin against an applicant who is otherwise competent to be married.

(b) On a finding by the State Commission on Judicial Conduct that a person has intentionally violated Subsection (a), the commission may recommend to the supreme court that the person be removed from office.

     Read literally, this would mean that even members of the clergy (who are authorized by this subchapter to conduct marriage ceremonies, see sec. 2.202(a)) may not discriminate based on race, religion, or national origin. Priests and rabbis would have to conduct interfaith marriages, even if they oppose them. Since Jewish ethnicity is generally seen as a “national origin” (and in some old statutes, a “race”), a rabbi who refuses to marry two people because one of them isn’t ethnically Jewish would likewise be acting illegally. (As I understand it, many rabbis will marry even Jewish atheists to other Jews, but not non-Jewish atheists; they would thus be discriminating based on Jewish ethnicity/national origin/race, not based on religion as such.)

     I strongly suspect that sec. 2.205(a) was only intended to cover judges (see sec. 2.202(a)(4)) who are authorized to perform marriages, and sec. 2.205(b) supports that interpretation. Because of this, and because of a reluctance to interfere with religious activities by religious clergy — an interference that would likely be an unconstitutional entanglement with religion or possibly an unconstitutional coercion of a religious act, and thus an Establishment Clause violation — I doubt that Texas courts would interpret sec. 2.205(a) literally. Still, it’s too bad that the statute is drafted so sloppily.

UPDATE: Some readers suggest that the clergy may be being prosecuted for signing their names to some government document attesting to the marriage. This might indeed be more punishable as an offense, partly because it’s more likely to be seen as a false statement of fact — a clerk might indeed not realize on a quick glance that this is a same-sex marriage, and be confused into thinking that the marriage was valid. But that’s not what I understood “solemnizing” to mean under New York law; as I understand it, solemnizing means performing the marriage, not signing a document.

     If, however, it does turn out that the clergy are being prosecuted solely for signing some government-issued marriage license (presumably one issued during the brief period that a New York official was indeed issuing same-sex licenses), then I’ll be much less concerned about the prosecutions.

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