Yesterday I argued that when a minister conducts a same-sex marriage — even if he says “By the authority vested in me by the state of New York, I now pronounce you spouse and spouse” — and it’s clear to everyone that same-sex marriages are actually not legal recognized, then he isn’t lying, but is rather expressing an opinion. How can that be?, some people asked. After all, his statement is literally false, and he knows it; he has no such authority.
Not all literally false statements, though, are lies. One classic example is fiction: If an actor says this in a play, that’s not a lie, because no-one will understand it as a factual assertion. It’s literally not true, but not a lie, either.
Likewise, some literally false statements, especially about law, are actually opinions, precisely because it’s clear to everyone that they’re literally false. Say that someone says today “Al Gore is the President of the United States.” That’s literally false, but precisely because everyone knows it’s false, it’s not a statement of fact any more. In context, it’s obviously a statement of opinion, expressing the view that Al Gore should be seen as the rightful President of the United States.
Likewise when a minister says “By the authority vested in me by the state of New York, I now pronounce you spouse and spouse.” If people thought he did have such actual authority, but he knew he doesn’t, then it would be a lie. But if everyone knows he lacks authority, the statement will obviously be understood for what it is — an assertion that in his opinion New York law should be interpreted by courts as recognizing this marriage.
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