A fine plan!
Seriously, what took you so long to get on board? 
My point was that there’s no New York State Code #103-441 “ALL SAME SEX MARRIAGES ARE ILLEGAL” law, as far as I can tell, it’s just existing law, which wasn’t really designed to cover the topic.
Nobody passed anything while I wasn’t looking, did they?
Nope, E-Sabbath, no one slipped anything by you. In fact, Attorney General Eliot Spitzer’s opinion on the matter (his press release with a link to the .pdf opinion) points out that his conclusion that performing same-sex marriage ceremonies is illegal in New York is Constitutionally shaky and points out that New York would most likely have to recognize same-sex marriages entered into elsewhere. His main points are:
[quote]
* The language of the New York State Domestic Relations Law - which includes references to “bride and groom” and “husband and wife” - does not authorize the issuance of licenses to same sex couples in New York;
* Therefore, the opinion recommends that local officials in New York should not issue marriage licenses to same sex couples, and officiants should not solemnize same sex wedding ceremonies;
* New York’s marriage laws raise important constitutional questions involving the equal protection of the laws. Any uncertainty arising from those questions must and will be decided by the courts; and
* Under state court precedent, same sex marriages and civil unions lawfully entered in other jurisdictions outside the state should be recognized in New York.
[quote]
Well Billdo’s cite seems to mean that the UU Ministers who have been solemizing committment ceremonies for 35 years have been breaking this law. As the code states, there is no specified form for the solemization. Whatever ceremony a religion uses is adequate. Therefore there are no “magic words” that make one unlicensed ceremony legal and one illegal. The inevitable conclusion is that all same-sex ceremonies for the past 35 years were illegal. This gets us back to my point that this is a violation of their Freedom of Religion.
And E-Sabbath, as far as I can tell, there is no law or court decision that explicitly states same-sex marriages are illegal in New York. It’s still undetermined. Further, the A.G. did not say they were illegal only that the DRL doesn’t provide for them. The advisory opinion acknowledges that determination raises constitutional questions best left to the judiciary.
Homebrew, you’re getting closer but still missing the point. You ask mention “the UU Ministers who have been solemnizing committment ceremonies for 35 years.” That’s the key. Committment ceremonies are not marriages. The distinction is important.
A clergy member, in accordance with the dictates of his or her faith, may have a ceremony that recognizes the committment of two people (of whatever gender), that blesses a couple (of whatever gender), that consecrates the union of two people (of whatever gender), or embraces any other purely religious function. Indeed, a clergy member may have a ceremony in which he or she declares that a couple (of whatever gender) is married in the eyes of the church, the lord, the congregation, or some other purely religious group, as long as the clergy member makes clear that he or she is acting only in a religious sense and not acting under his or her authority to perform marriages under the laws of New York.
I would think that all of those same sex couples that were united in committment ceremonies over the past 35 years were not under any illusions that they were legally married. And I would be shocked if any of the UU ministers suggested that the couples were legally married under the laws of New York or whatever state they were in.
Under New York law, clergy members are delegated the civil function of solemnizing marriages, but in doing so, they are required to comply with the law. Although there is no particular form required for the marriage ceremony, that does not mean that any ceremony is a marriage. Rather, the ceremony has to be intended by the participants to be a marriage, and have the statutory requisites of a marriage ceremony under DRL 12, either 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,” or the ceremony must be in the form used by the denomination performing it. If it doesn’t meet these requisites, it isn’t a marriage.
In other words, clergy members and followers are permitted to practice their religions as they see fit, and design and perform whatever non-marriage ceremonies they desire. However, the clergy member cannot perform marriges valid under state law except in compliance with state law. This does not interfere with their freedom of religion.
I am not sure if this has sunk in yet, but religious marriage and civil unions are already separate in the case of gay couples. They can be religiously “married”, but not form a valid civil marriage.
No one is objecting to the UU performing religious marriage. As you yourself posted:
Thus the actions of the prosecutor do not threaten freedom of religion for the UU in any way.
It is only when they trespass their religious authority and attempt to perform civil marriages for gay couples - as they do in this case - that they are subject to legal action.
So put it this way - we eliminate any government involvement in marriage, and call it civil union instead. And we implement the will of the majority and continue to refuse to grant licenses for civil unions to gay couples.
This is what I meant by telling you that calling it something different will not address the issue. It is also why there is no violation of the freedom of religion, either here or if we allow civil unions for male-female couples only. The trouble is not government trespassing on religion, but religion trespassing on government.
Thus your argument that to continue to disallow same-sex civil unions is a violation of religious freedom is also a red herring. Religions can, as you and I agree, continue to perform religious marriages for gays, or not, just as they choose. But they are not allowed to implement civil marriages, because that is a civil function not under the control of any religion.
QED.
No. Civil marriage is now the government recognized relationship. Religious marriage is the religious. You can now have one without the other. Only Civil Marriages have any legal weight. The problem remains.
Regards,
Shodan
In the eyes of the UU Church, the GLBT community and their friends, there is no difference.
It’s a distinction without a difference. The difference is in name and legal rights only. Committment ceremonies are as much a marriage as a wedding with the Pope officiating. It’s only lingering straight supremicist thinking that differentiates. Tell me how they’re different in any meaningful way?
The bolded part of your own statement answers your last question. It is exactly the legal rights that we are talking about here.
UU ministers are perfectly free to perform religious ceremonies for gay couples. They are not free to perform civil marriages/civil unions/whatever you like to call them. The first is recognized by the church and binding on members of that religion. The second is recognized by the state, and binding on members of the state.
To allow the UU to overrule the will of the majority and perform civil ceremonies against the law - that would constitute an establishment of religion, which would be a violation of freedom of religion. The UU is perfectly free to perform ceremonies if they like. They are not free to enforce their religious ceremonies on the rest of us thru the civil power of the state.
Come on, Homebrew, you are not stupid. Don’t post as if you were. The UU no more has the power to determine what is a civil marriage than the Roman Catholics have to decide that my marriage is not valid because I have had a vasectomy. The Catholics can refuse to perform their religious ceremony for me, or refuse to recognize the validity of my marriage. They may not try to affect the civil validity of my marriage, because they do not have that authority.
No more do the UU-ers.
Regards,
Shodan
Goddammit! It’s like talking to a brick wall with you.
The ministers of any religion don’t have the civil power of the state to solemnize a marriage that the state doesn’t recognize. They can’t. It’s impossible. All they can do is solemize a relationship for their church. The state recognizes that solemnization in cases where they’ve allowed a marriage license (and in some cases where they would have issued a license although one was not obtained). The UU ministers saying that they consider the same-sex marriages over which they officiated as being equal to opposite-sex marriage doesn’t force jack shit on the majority. It’s the damned piece of paper that makes the difference when you file for any of the legal benefits. If these people aren’t granted the legal benefits of marriage and the state doesn’t recognize their marriages then, dammit, the clergy did not solemize a legal marriage without a license. They only solemized a religious one. Charging them with a crime infringes on their freedom. I’d say the same thing if a minister was charged with this crime for officiating an opposite-sex marriage, too. This law is unconstitutional.
Homebrew, I’m not sure why you continue to insist that: “It’s the damned piece of paper that makes the difference.” Quite simply, it isn’t.
I agree that if a minister attempts to solemnize a marriage that is void under law (for example, incestuous under DRL 5 or bigamous under DRL 6), no marriage results. However, if a clergy member attempts to solemnize a void marriage without a license, he or she is still guilty of a misdemeanor under DRL 17.
Under DRL 17, it is not only criminal for a clergy member to solemnize a marriage but also to “presume to solemnize” a marriage without a license. If a clergy member performed a wedding of a brother and sister who did not have a license (brother/sister marriages being void under DRL5), no valid marriage would result but the clergy member would have violated DRL 17 the “presum[ing] to solemnize” the void, incestuous marriage.
Put another way, though clergy members, as you say, “don’t have the civil power of the state to solemnize a marriage that the state doesn’t recognize,” they do have the power under law to solemnize valid marriages. With that power, however, comes responsibility. In giving clergy members (and specified civil officials) that power, the state has issued some restrictions to protect the public. Specifically, the state has required that those authorized to perform marriages do not defraud the public and couples by performing a ceremony that appears to be a valid, authorized wedding but is not. Historically, I’m sure one concern was that some young woman would be misled by an unscrupulous clergy member that a not-quite-wedding ceremony (or a bigamous marriage, or whatever) was a reason for her to give up her pearl of great price. and when she found out that she was not validly married, she would be left a debauched woman. Today, the issue is more relevant in marital property rights.
There are a surprising number of New York cases in which a spouse attempts to claim that his or her marriage is invalid through some defect in its solemnization. Most frequently, this occurs in the context of a divorce proceeding in which a spouse is seeking to avoid equitable distribution of marital assets of the challenged marriage (like the ]Persad case I cited above). However, New York has a strong policy favoring the validity of marriages, so most of these attempts are unsuccessful. Where the couple has had some semblance of a marriage ceremony with an officiant that appeared to be qualified, (particularly where the marriage is of long standing or there are children) the courts will most likely find that the marriage was validly entered into and grant equitable distribution on divorce.
In any event, under the DRL, clergy members are given the power to perform valid marriages, but restricted from abusing that power by DRL 17 which makes it a misdemeanor if they improperly “solemnize or presume to solemnize” a marriage. Even if a marriage that they have “presume[d] to have solemnize[d]” is void, they still violate DRL 17. Clergy members have the broad First Amendment right to perform any religious services they desire, but if they perform a ceremony that they say is a marriage valid under New York law with no license, they have violated DRL 17.
Try to file joint taxes without that piece of paper. Try to finance a mortgage jointly without that piece of paper. Try to die intestate without that piece of paper. A civil marriage relies on that piece of paper for legal purposes.
Any religious ceremony joining two individuals is solemizing a marriage. But without the proper papers filed, the state does not recognize that marriage. So either they’ve been breaking the law for 35 years or this D.A. is overreaching.
It’s absurd that you argue that they were defrauding the couples or the public. Every couple involved, every minister involved, the Fucking D.A. and all of you know well and good that these people didn’t believe they had a real civil marriage. They were trying to make a point that they consider the marriages equal - not that the state does. They’ve been doing it for 35 years and have never been charged before. Why is this suddenly an issue? Williams is trying to intimate, bully and grandstand. It’s despicable. And it’s shameful that you would defend his actions.
You also didn’t tell me how “committment ceremonies are not marriages. The distinction is important.”
I’m curious, Homebrew, where you get the idea that a marriage certificate is necessary for any of those things. There is no requirement under the Internal Revenue Code that a couple must possess or file marriage license before filing a joint return. I’ve represented dozens of married couples applying for mortgages, and never once did a lender require a marriage certificate to process or issue a loan. And I’ve never heard of someone not being able to die, with or without a will, because they didn’t have a marriage license. 
Actually, in a probate case, the Surrogate’s Court will consider all of the facts and circumstances to determine whether the decedent was married, and the presence or absense of a marriage license will not be controlling. I’ve seen several decisions from cases in which a putative spouse and a decendent’s family have fought over whether there is a valid marriage, which would entitle the spouse to the intestate estate or an elective share under a will.
In several states, neither a marriage license nor a ceremony with an officiant is required to enter into a valid marriage, but rather recognize common law marriages, under which a couple is married where they agree to be married, live together as a married couple, and represent to the public that they are married. (A common law marriage should not be confused with the frequently misused term “common law husband/wife” referring to someone who is living with someone else – a true common law marriage is a fully legal and valid marriage indistinguishable from a ceremonial marriage). See, for example, Texas Family Code Sec. 2.401 (defining “informal marriage” under traditional formulation of common law marriage).
If a couple enters into a common law marriage in one of the states where it is legal to do so, that marriage will be held to be a perfectly legal and binding marriage in New York, despite there never having been a marriage license. You may recall the case involving actor William Hurt, in which a woman claimed that she was married to him and entitled to a divorce settlement because they lived together while he was filiming a movie in a common law marriage state (North Carolina, if I recall correctly). There the court found that there was no marriage, but under different facts, a court could well find a fully valid marriage based on open cohabitiation as a married couple in a common law marriage state.
The fraud issue here is that, in contrast to the committment ceremonies for the past 35 years, the ministers “signed affidavits for the couples they married and said they considered the ceremonies civil and legally binding.” (CNN Article) In so doing, they were presuming to solemnize a civil marriage, and ran afoul of DRL 17, and quite properly prosecuted for it.
I have to disagree with your statement that: “Every couple involved, every minister involved, the Fucking D.A. and all of you know well and good that these people didn’t believe they had a real civil marriage.” I think many of the couples married by the New Paltz mayor and the ministers at issue here do in fact believe that their ceremonies were in fact valid civil marriages, and that the subsequent litigation of this issue will bear out this fact. Likewise, I don’t believe that the couples that have gotten married in San Francisco and Portland think that their ceremonies were only sham or merely symbolic, but rather that they were perfectly valid, though subject to later judicial invalidation.
You seem to think that this was some grand gesture with no real consequenses, but in fact it was a significant legal event. The most obvious way that this may be made clear is if the New York courts determine that the marriage laws of New York do not discriminate on the basis of the sex of the participants, those marriage ceremonies will be fully valid and binding. (Couples joined in previous committment ceremonies that did not presume to be civil marriages as well would not be considered to married.) Indeed, there is even the possibility of the perverse resulte, suggested by Attorney General Spitzer’s opinion, that the courts could find that New York law prohibits same sex couples from legally getting married, but if they do (like these couples did), the state must recognize the marriages, though the clergy member that prerformed the prohibitted marriage remains subject to prosecution.
In short, your focus on the marriage certificate is misplaced.
By the way, committment ceremonies are not marriages. The distinction is important.
The cutsie smilie here does nothing to mitigate my outrage over this statement. Please explain how the marriage of two homosexuals is any less of a marriage than that between heterosexuals, other than the legal non-recognition.
That is because you insist on being wrong.
Wrong. The UU ministers, and other ministers of other churches, have both the right to perform religious marriage ceremonies, and civil marriage ceremonies. The religious ceremonies are controlled by the laws of the church, and the civil ceremonies are controlled by the laws of the state.
And when the UU ministers fraudulently and dishonestly state that they are performing a civil marriage, as they have done (and has been repeatedly pointed out to you):
they are in violation of the law.
Billdo has helpfully linked to, and cited, the relevant law:
Wrong. Directly, demonstrably, legally wrong. Read what the UU ministers themselves said. They said, clearly and directly, that they intended to perform a civilly valid marriage for persons who were not capable of contracting such a relationship. In so doing, they were in direct violation of the law.
No, you wouldn’t. Nobody involved in the gay marriage controversey ever said jack shit about the unconstitutionality of civil marriage until they decided to try to get judges to change the definition. And if civil marriage were extended so that a gay couple could get a civil marriage licence, you would instantly stop complaining about it.
You are wrong. When you state that the UU ministers did not attempt to form a civil marriage, you are wrong. When you state that this is not a violation of the law, you are wrong. When you claim that this is a violation of anyone’s religious freedom, you are wrong. When you claim that allowing the UU church to determine what constitutes a valid legal marriage is not an establishment of religion, you are wrong.
Unambiguously, legally, and completely wrong.
Regards,
Shodan
If you follow the reasoning of the state’s A.G., the legislature never intended to authorize same-sex marriages. By that same logic, Section 17 was never meant to deal with the cases of ministers solemizing same-sex unions.
Those cases deal with opposite-sex relationships. If a man and woman live to together for long enough, the state presumes them to be married. Not so for two men or two women. I can dig up cites if you need them of gay people who have been kicked out of their homes by the famlies of their deceased partner because they did not have the legal protection. I can cite cases where children have challenged wills and sucessfully disinherited a long-time companion. As a counter example, the Anna Nicole case shows how difficult it is to do the same with an opposite sex marriage. Same sex relationships are not treated the same by the courts and will never be until we are allowed to form the same LEGAL relationships.
The difference is that in San Francisco, Portland and even with the Mayor of New Paltz, the couples have a license. Sure these couples and the ministers were intending to make a political point and might even plan to litigate to get these marriages recognized; but I don’t think any of them believe the marriages are legally recognized despite their will to fight to have them so acknowledged. My focus on the certificate isn’t because I consider it important in and of itself. But I consider it evidence of intent. If they haven’t filed that certificate, then they haven’t shown any intent to defraud. We don’t have the wording of the affidavit they signed, so you’re presuming too much about what it says to hang your whole condemnation on that.
Homebrew, the legal non-recognition is exactly the difference to which I am referring.
First of all, the issue here is not solemnizing same-sex marriages, the ministers are not being prosecuted for that. The issue is solemnizing marriages without a license. That’s what is illegal.
Wrong! The state will only find a man and a woman married if they are actually married. That is to say they have to have had a marriage authorized under the laws of the state where it occurred. In no state does simply living together make a state presume a marriage. (As I said before, in some states, if a couple agrees to be married and holds themselves out as married, and lives together as a married couple, they may be married, but simply living together does not count).
Yes, but exactly the same things happen to opposite sex unmarried couples. What this has to do with ministers being prosecuted for solemnizing marriages without a license I don’t understand. In the Anna Nicole Smith case, she was legally married and the family is still fighting her getting the estate, largely successfully to date.
Wrong! In the case of the Mayor of New Platz, the couples did not have licenses. The Mayor went ahead and married them anyway, and he’s getting prosecuted under exactly the same statute. In fact, the couples that the ministers we are talking about married (or presumed to marry, we’ll see) are the ones that the Mayor would have married if he did not stop doing so under threat of court action. Both the Mayor and the ministers are being treated the same, so the issue is not a religious one.
And the issue is not what is on any particular piece of paper. Verbal statements can be just as legally binding as written ones, and the whole law of marriage is based on verbal acts (with the exception of an obscure section authorizing marriages by written contract). How many weddings have you seen where the couple comes out in front of the guests and formally signs a paper? Not a hell of a lot. It’s the verbal acts of the couple and solemnizing official (civil or religious) that count.
Marrying those same sex couples without the licenses licenses they could not obtain (whether the marriages are found valid or not) was an act of civil disobedience as part of the ongoing strugle for gay marriage. The ministers and the Mayor of New Paltz knew that they might be prosecuted, and they are being prosecuted.
I think that you show a grave disrespect to the couples and the UU ministers by suggesting that these were some sort of sham demonstration rather than acts intended to have real legal consequences. The reason that people, gay and straight, are fighting to permit gay marriages is so that same sex couples can have real, legally-valid weddings and not just ceremonies that are personally important but have no effect under the law.
Don’t you presume to patronize me on this issue. You are the one who insists that a Committment Ceremony is not a real marriage. You are the one who insists that the years of same-sex marriages that UU ministers (and others) have solemized aren’t real marriages. I don’t discount the validity of these marriages. I don’t discount their hope that they will be legally recognized. But I don’t demean their intelligence by suggesting that they actually believed the state recognizes them. I fully acknowledge that they took these steps in part to force the issue with the state. But I don’t suggest they are “sham demonstrations”. They are very real marriages in every way except in legal matters. If the state doesn’t consider same-sex marriages as valid, then it can’t prosecute these ministers for “soleminizing” a marriage without a license because they aren’t “marriages”.
Now you’re just nit-picking. You know very well that I was only referring to cases of common-law marriage.
Nothing directly. It was a counterpoint to your assertion that a marriage license and certificate aren’t necessary to protect a couple’s legal rights. Furthermore the fact that the family is having difficulty disinheriting Anna Nicole is the point. As it is they are still fighting years afterwards and most sources believe she will eventually get her $88 million. If it were two men, this disinheritence would have been routine. As would the very real possibility of the survior losing any property the deceased owned that wasn’t explicity jointly owned.
Okay, I’m incorrect about the Mayor. How about you acknowledge that you’re wrong in comparing these to the licensed marriages in San Francisco and Oregon.