MORE ON THE U.U. MINISTERS' ARRESTS: Eugene Volokh

...Clergy are not in fact state officials. They are indeed delegated a certain degree of government power (potentially itself troublesome, though certainly historically well-sanctioned). But here the government's point is that this power doesn't include the power to engage in same-sex marriage. The ministers are therefore not exercising government power. Nor are they likely to dupe anyone (either the parties to the marriage, or bystanders) into thinking that the marriage is valid -- there'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.

Rather, the ministers are doing two things: (1) speaking certain words, and (2) performing a religious ceremony while doing so. The only thing that makes a minister's conducting a same-sex marriage into purportedly illegal "solemnization" is that it involves words being said by a minister.

...Finally, note that this sort of punishment of clergy for their marriage practices, if accepted, could go both ways. ...

UPDATE: ...If, however, it does turn out that the clergy are being prosecuted solely for signing some government-issued marriage license (presumably one issued during the brief period that a New York official was indeed issuing same-sex licenses), then I'll be much less concerned about the prosecutions.

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posted by Eve at 10:09 AM | link

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