Once more for the reading impaired, I believe this law does not apply to their situation and the D.A. is overstepping his authority. If it is ruled that this law does apply in these cases, then I believe it violates their First Amendment rights. They are being charged with a crime for preforming a religious ceremony.
But the religious ceremony part wouldn’t be the crime. It is the arson and robbery that are charged. There is no indication that these ministers filed the certificate with any clerk whatever their public opinion on the legitimacy of the marriages. Without trying to file that certificate (unless that’s what the affidavit mentioned is), I don’t see how they broke any law.
Well to get really pedantic, the actual marriage is the relationship of the participants after the ceremony. But that really misses the point. My point is that I don’t see any reason to require any ceremony beyond filing for a marriage license.
Further it seems to me that Bricker is right that the state requirement to “solemnize” a marriage entangles the state and religion.
Billdo makes a good point here that clarifies my thinking on the matter.
I think in this case, this section violates the First Amendment. If a religion accepts same-sex marriage and has a ceremony for such, then this criminal charge is an infringement of that religious practice.
So if the participants had a license, then the ministers broke no law because the courts in New York haven’t decided whether the DRL allows same-sex marriages or not. The Clergy can make an honest statement they believe the DRL does allow such marriages, then they don’t have “personal knowledge of the incompetency of either party therein named to contract matrimony”.
No, they are charged with performing a religious ceremony and fraudulently claiming that it had civil validity. It is not that much different from some Christian Science practitioner issuing licenses to practice medicine.
Just as here, the religious ceremony part isn’t the crime. It is the false presentation that it was a civil function as well.
Which, again, is like claiming that I didn’t break any law when I performed a religious ceremony authorizing some one to drive a taxi.
Ministers have no special exemption to disobey the law when they are performing civil functions. They cannot bury someone who isn’t declared legally dead, they can’t solemnize a civil marriage for people who don’t have a licence.
No, the ministers did that, when they claimed the right to perform a function for which they were not authorized - create a civil marriage for a same-sex couple.
If they had been arrested for only performing a religious ceremony, you would have a point. They weren’t, so you don’t.
In the CNN story on this matter, the ministers were described as being charged with “solemnizing unlicensed marriages.” The previous reports regarding the New Paltz mayor explained that he performed the marriages without licenses, and he appears to be prosecuted under the same charge, apparently DRL 17.
The CNN story notes:
If this is accurate, the ministers would have gone outside their First Amendment-protected right to perform religious ceremonies. By stating that they considered the ceremonies legal, civil marriages under New York law, they’ve pretty squarely violated the provisions of DRL 17.
DRL 18 is a safety provision that protects clergy and civil officials authorized to perform marriages when they are presented with a marriage license that appears proper. Under the law, the Town and City Clerks are the ones to determine a couple’s qualification to obtain a marriage license, and if the Clerk misses something an unsuspecting clergy member cannot be convicted (unless he or she knows of a reason the couple should not legally be married). Since it appears that the same-sex couples did not have marriage licenses, it provides no protection to the ministers.
I don’t think they tried to pass anything off as being a legal, civil union. They stated a personal opinion when they said that in their eyes, it was a civil union. The couple marrying didn’t construe it as a binding legal statement. It would only become an issue if the clergy tried to file the papers to lock in their “opinion.” Anyone can say anything they want, as long as they didn’t do it to deceive anyone.
No minister can solemize a civil marriage unless a license is issued. Therefore, they could not have performed a civil marriage even if they wanted to and stated they planned to do so. There is no way for these marriages to have been anything but religious marriages.
The reporter is wrong. The AG’s office gave the opinion that the matter is undecided and best resolved by the courts. The opinion states that the legislators probably did not intend to allow same-sex marriages, but it does not state that it is illegal. Furthermore the opinion makes clear that it is an advisory opinion only and not a formal opinion. In any case the A.G. doesn’t decide what the law is but only interprets the law as the attorney for the state. The court has final say, as the A.G. acknowledged in this case.
)(bolding mine) There is nothing there to suggest Williams should be prosecuting these cases.
This was an act of civil disobedience, two ministers who are challenging the existing law of the land.
Charging them with that crime is no more attacking “religious freedom” than arresting nuns who chain themselves to fences at army compounds or arresting the Berrigan brothers.
That’s speculation on the part of Tyger. In fact we don’t know whether or not Greenleaf and Sangrey said “by the power invested in me by the State of New York”.
The prosecutor gave his reason for filing charges as “Greenleaf and Sangrey publicly said they considered them civil.” Not because of any specific phrase used. Even if we allow that they did use that magic phrase, it doesn’t necessarily violate New York’s laws. There is no indication that they filed certificates with any judge to officially recognize these marriages - which might be illegal. There is no court ruling that same-sex marriages are illegal in New York so that angle is right out.
Without that paperwork, the marriages are purely religious and they are being charged with a crime. Therefore they are being charged with a crime which is infringing on their religious freedom.
Homebrew, you seem to be missing the point. You suggest: “Without that paperwork, the marriages are purely religious and they are being charged with a crime.” That is simply not the case. The issue is not whether the ministers filed anything with a judge or official, but whether the ministers stated they were solemnizing a marriage valid under the civil law.
What is criminal under DRL 17 is "“solemnize[ing] or presume[ing] to solemnize any marriage” without a license. If the ministers stated that the ceremonies claimed to be solemnizing a marriage (as opposed to a religious ceremony not considered a marriage under civil law), then they were violating the law. By saying “they considered the ceremonies civil and legally binding,” it pretty clearly means they were “presum[ing] to solemnize” the marriages.
The fact that there was no license issued does not mean there was no valid marriage. In fact the DRL has a provision that may expressly say the opposite. DRL 25 provides, in relevant part: “Nothing in this article contained shall be construed to render void by reason of a failure to procure a marriage license any marriage solemnized between persons of full age . . .” In other words, if two adults otherwise permitted to marry found a clergy person who married them in New York without a license, the marriage would be valid, though the clergy person would be subject to prosecution.
Now, whether two same-sex adults are considered otherwise permitted to marry is a question as yet unresolved by the New York courts. However, if the courts find that New York law permits same-sex couples to marry, the couples married without licenses by the ministers and the New Paltz Mayor would likely be considered to have valid marriages under New York civil law, and the prosecutions of the ministors and mayor would not be affected, because the charge is solemnizing marriages without licenses, not solemnizing same-sex marriages.
I disagree. The couple has 60 days after getting the license to have the marriage “solemized”. Then the official has five days to file the certificate. Otherwise the marriage is not recognized and they’ve got to do it all again. ISTM, then, that the relevant paperwork is what is necessary for a marriage to be considered officially a civil marriage.
No matter the outcome, whether I’m right or wrong, this case shows the absoute clusterfuck that results from mixing religion and government. Civil marriage should be a strictly legal issue with the participants filing whatever paperwork necessary and that should be the end of it. Clergy should preform whatever religious rites a couple wants or they should solemize it however they choose. But the Civil Marriage and the Religious Marriage are two separate things and that difference should be made more clear. I’ve come to agree that Civil Unions for everyone is the best solution and the government should quit using the term.
And exactly how do we keep ministers from illegally performing civil unions?
The ones starting the clusterfuck were the Unitarians. They were attempting to perform an illegal civil union. The prosecutor in this case is attempting, in other words, to do exactly what you recommend - prevent a clusterfuck.
Calling it something other than marriage does not address the issue.
Because, idiot, a minister wouldn’t have anything to do with a Civil Union if religious marriages and civil unions were completely distinct as proposed.
Unitarians have been solemizing same-sex unions for 35 years. It’s a good thing dickhead Williams finally came along to put an end to the chaos. Furthermore, it’s not decided yet whether same-sex marriages are illegal in New York.
Yes. Civil Unions would be the government recognized relationship. Marriage is the religious. You could have one without the other. Only the Civil Unions would have any legal weight. The problem is solved.
Actually, it has been decided that same-sex marriages are illegal. That the law may be overturned sometime in the future doesn’t mean it’s not in effect now.
Actually, from my understanding of things, Doors, it is opined that same sex marriages are illegal. Mr. Spitzer has said that his reading of the law says it is so. There are other people who claim it is legal.
The precise nature of legality of the marriages await the ruling of a judge, appeal, and eventual final ruling.
Like I said, until it is decided in court, it is currently illegal. That is not an opinion, that is fact. What you said isn’t any different from what I said to begin with.
Airman Doorsand Shodan are quite right–gay marriages are illegal in the state of New York, just as interracial mariages used to be in most states half a century ago. As the miscegenation laws were thrown out, so too will the archaic anti-gay marriage laws be junked. It’s only a matter of time until primitive, religion-based bigotry will no longer be enshrined in our nation’s statutes, and all citizens will have the full and equal protection of the law.
Given that the state has demonstrated that it has an interest in defining marriage through laws, as exemplified by laws against bigamy and polygamy, anti-gay marriage laws have the strength of precedent behind them. The question is how do we, or even should we, distinguish between the degree to which the state may regulate private behavior between consenting adults.
No, no, no! As I explained before, you are entirely incorrect. It is the solemnization (meaning performance of the marriage ceremony) which makes the marriage recognized under law, and obtaining or filing the license is not necessary for the marriage to be considered valid. Domestic Relations Law Section 25 (which I cited and quoted above) provides, in relevant part:
In other words, even if there is no marriage license, if a clergy person or authorized civil official performs a marriage ceremony, the parties are married (unless the marriage is void or voidable for some other reason). A recent case, Persad v. Balram, 197 Misc.2d 711, 724 N.Y.S.2d 560 (Sup. Ct. Queens Cty. 2001) (sorry, I have no free online cite) confirms this. There the putative husband sued for a declaration that he and his wife were never married. Both parties had participated in a Hindu marriage or “prayer” ceremony presided over by an ordained Hindu priest or “pandit,” despite having never obtained a marriage license. The court stated that “[e]ssentially, the Domestic Relations Law establishes that where parties participate in a solemn marriage ceremony officiated by a clergyman or magistrate wherein they exchange vows, they are married in the eyes of the law.” The court found that “the parties, before a Hindu pandit, exchanged vows and declared their desire to be husband and wife. Accordingly, all the requirements of a lawful marriage under the Domestic Realtions Law were fulfilled.” The court found that neither the failure of the parties to obtain a marriage license nor statements that the parties did not intend to be married until a subsequent civil ceremony affected the validity of their marriage before the pandit.
Whatever your views of what the law should be, if the ministers performed a marriage ceremony for people who didn’t have a license, they’ve violated the law.