UU ministers arrested
Christopher C. Lund
chlund1 at hotmail.com
Wed Mar 17 09:34:47 PST 2004
I just wanted to respond to a minor point of Professor Cruz who
"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.
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