Wednesday, March 03, 2004

Can This Be Right?

Eugene posts the following New York statute, and I want to know if I’m reading it correctly:
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.
The statute is suddenly relevant because the mayor of New Paltz has been performing marriages of gay couples (who don’t have marriage licenses). But as written, this statute would apply to clergymen as well.

Now, suppose that I’m a minister, and as such I am authorized by the state to perform marriage ceremonies. And suppose that I officiate for a marriage ceremony without a marriage license, and with no pretense of this marriage having the state’s sanction. Everyone involved understands this to be a religious marriage, with no more legal significance than the state should choose to grant it. Notice that I haven’t specified the sexes of the participants. My actions would seem, under a commonsense definition of “solemnize” and a strict reading of the text, to fit within the statute’s language and therefore constitute a crime. If so, then the statute would also pretty clearly constitute a violation of the First Amendment’s protection of speech, association, and free exercise of religion. Does anyone know if “solemnize” has a more specific statutory meaning of which I’m not aware?

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