Two weeks ago, I pointed out that the New York law being used to prosecute the mayor of New Paltz for performing same-sex marriages could, by one reading of the text, be used to prosecute clergymen for performing same-sex marriages as well – even if they made no pretense of the ceremonies having legal force. The key question was the interpretation of the word “solemnize.” In response to my question about the legal meaning of this word, MLS answered (in the comments box) that it does indeed have a more restrictive meaning in New York law that would restrict its application.
I’m relatively confident MLS’s interpretation is correct. But nevertheless, at least one New York prosecutor has chosen to prosecute ministers for performing same-sex marriage. The fact pattern is darn similar to the one I described. The prosecutors’ spin is that the ministers were arrested only for their acts as government officials, not their acts as religious leaders. But Eugene nicely deconstructs that argument: “[T]here'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.”
What we have here is a nice demonstration of the danger posed by vaguely worded laws in the presence of prosecutorial discretion. Even if reason and precedent point toward a narrow interpretation, that won’t stop the authorities from harassing people using a broader one, at least until a clarification is made.
In any case, I think I deserve credit for having foreseen this kind of case before it happened.