CNN reports that the ministers apparently “signed affidavits for the couples they married,” which might indeed make their actions potentially deceptive. (Affidavits are often quickly skimmed by bored clerks who never saw the parties, and who might not notice, even if the form mentions it, that both the people being married were men.) But the prosecutor is apparently prosecuting the ministers not on charges of false statements on affidavits, but for illegally solemnizing marriages. As I read New York law, solemnizing means simply conducting the ceremony, not signing any affidavit:
Domestic Relations Law sec. 12: “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: “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: “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.”
Curiously, if sec. 12 is read as the definition of solemnization (no section explicitly defines solemnization as a term), then conducting a same-sex marriage ceremony wouldn’t be solemnization because the parties aren’t taking each other as husband and wife. In any event, though, Penal Code sec. 255.00 would still prohibit the conducting of a marriage ceremony, whether it’s a solemnization or not.
So the alleged solemnization consists simply of conducting the ceremony, with no regard for the affidavit. What’s more, though the prosecutor disclaims any desire to prosecute ministers for conducting purely religious ceremonies, the statute applies equally even to ceremonies that everyone understands are intended purely as religious ceremonies, not civil ones — after all, “perform[ing] a marriage ceremony . . . knowing that a legal impediment to such marriage exists” is itself a misdemeanor under sec. 255.00. So I continue to be troubled by New York law.
Glen Whitman has also written about this issue, here and here.
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