One technical point about the New York law

[Volokh, Eugene]

I just realized one point I failed to mention (and, no, despite the time-stamp in my messages, I'm sending these from 11 to 12 in the evening, not from 2 to 3 in the morning):
 
As best I can tell, New York law doesn't have an explicit definition of "solemnize"; but Domestic Relations Law sec. 12 does seem to implicitly define solemnizing as doing what that section describes.  And that section requires that the parties solemnly declare "that they take each other as husband and wife."  Such an announcement, of course, is not going to be literally forthcoming in a same-sex marriage; and while I'm sure these exact words aren't required, whatever is said (e.g., "spouse and spouse") will not mean husband and wife.  If that's so, then there doesn't seem to be any solemnizing at all, which defeats the prosecutor's supposed "illegal solemnizing" theory; it leaves only the "marriage ceremony" language in Penal Law sec. 255.00 as a possible hook for criminal liability, and as I understand it the prosecutor isn't relying on that language.
 
I mention this, incidentally, just for the sake of completeness -- naturally, the broader religious freedom / freedom of religious speech / freedom of speech issue we're discussing could easily arise under statutes that aren't worded quite this way, or under the "marriage ceremony" prong of Penal Law sec. 255.00.
 
Eugene
 
I earlier wrote:

I took a closer look at the New York statutes, and here’s what I found:  

	

	Domestic Relations Law sec. 12 provides that “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 provides that “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 provides that “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.”

	

	Given this is so, wouldn’t the minister be guilty simply by performing a religious marriage ceremony in which the parties solemnly declare (in front of the clergyman and at least one witness) that they take each other as husband and wife?  It seems to me that the minister’s performing the ceremony -- which, I stress again, simply involves speaking -- would be a crime whether or not he says “by the authority vested in me by the State of New York.”  The statute draws no distinction between marriages intended to be purely religious marriages and those intended to have legal significance.  Or am I misreading the statutes?

	
	Eugene