UU ministers arrested

[Christopher C. Lund]

           I just wanted to respond to a minor point of Professor Cruz who 
said:

"Doug Laycock isn't right that there is something troublesome about such a 
fusion of governmental and religious authority.  I had previously thought 
that perhaps allowing
clergy to perform the government's solemnization function might be
justifiable as a form of accommodation, at least loosely speaking.  Many
people who marry will do so before clergy, and allowing clergy to
solemnize thus spares the marrying couple the need to go get a separate
solemnization from a government official.  We might need to read such
statutes with Seeger/Welch broadness to avoid religious favoritism (as I
suspect that some marriages are officiated by nongovernmental yet
nonreligious private parties).  But, even if we did, do prosecutions such
as New York's suggest that there is an improper entanglement of religion
and government when it comes to "solemnization" of marriages?"

________

           There would be no trouble here if the government delegated its 
authority broadly to everyone that wanted to marry two people and clergymen 
were included like everybody else.  But that wouldn't be a real fusion of 
governmental and religious authority.  It would just be a general delegation 
of power -- like the power to contract.

           The real problem here is that New York does not delegate its 
power to marry broadly; it gives it *only* to clergymen and certain public 
officials -- not the general public.  See N.Y. Domestic Relations Law sec. 
11 (explaining that "[n]o marriage shall be valid unless solemnized by 
either: (1) a clergyman or minister of any religion . . . (2) a mayor . . . 
(3) a judge . .  [etc.]").  That's the problem -- this is a special 
delegation of public authority to religious groups a la Larkin v. Grendel's 
Den, Inc., 459 U.S. 116 (1982).  I dig Seeger and Welch, but these sorts of 
statutes usually cannot even plausibly be construed that way; Sec. 11 has 
not even been read to apply to all religions, much less nonreligious people. 
  See Ravenal v. Ravenal, 338 N.Y.S.2d 324 (N.Y. Sup. 1972) (holding that a 
minister of the Universal Life Church was not a clergyman for purposes of 
the statute); Rubino v. City of New York, 480 N.Y.S.2d 971 (N.Y. Sup. 1984) 
(same).  Of course, other states with similar statutes consider ULC to be a 
religion for purposes of making a marriage legitimate, see Matter of Last 
Will and Testament of Blackwell, 531 So.2d 1193 (Miss. 1988) (holding that a 
ULC minister did have power to marry couples in Mississippi under 
Mississippi law, but noting that New York, North Carolina, and Virginia all 
did not permit such things under their statutes).  So the moral is if you 
are a ULC minister trying to make a living solemnizing marriages, go to 
Mississippi.  This is all very entanglement to me.

            Chris

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