• Key point 3-04. All states permit clergy to perform marriage ceremonies. However, some states permit only “ordained” or some other classification of clergy to perform marriage ceremonies. It is important for clergy to determine if they are legally authorized to perform marriages under applicable state law, and in addition to be aware of the legal qualifications for marriage and any license and reporting requirements prescribed by state law.
Performance of Marriage Ceremonies
* A New York court ruled that a state law barring same-sex couples from marrying was unconstitutional, and so two ministers who married 13 same-sex couples could not be charged with the crime of solemnizing marriages without a valid license. The New York Domestic Relations Law specifies that a person who performs a marriage without being presented with a marriage license is guilty of a misdemeanor. It makes no distinction between same-sex and heterosexual couples. Thirteen same-sex couples went to their local city clerk to obtain marriage licenses so that they could be married by two ordained ministers of the Unitarian Universalist Church. The clerk construed the law to allow marriage licenses only between a man and woman, and refused to issue marriages licenses to the same-sex couples. The two ministers went ahead and performed the marriages without being presented with valid marriage licenses, and they were charged with a crime for solemnizing marriages without licenses. Conviction could result in a maximum fine of $250 and incarceration for a maximum of one year.
The ministers claimed that the charges against them were unconstitutional because the same-sex couples whose marriages they solemnized were unconstitutionally denied the ability to obtain marriage licenses. They also argued that criminalizing the solemnization of unlicensed same-sex marriages by ordained clergy unconstitutionally infringes on the exercise of their religion and their religious belief that marriage is a desirable and holy state for all couples, including gay and lesbian.
The court noted that for a law that makes “classifications” among people to be constitutionally valid the state must prove that “the classification is rationally related to a legitimate state interest.” The prosecutor advanced two state interests for limiting marriage to opposite-sex couples: tradition and procreation.
The prosecutor pointed to the “long tradition of political, cultural, religious, and legal consensus that marriage is understood as the union of male and female” as a legitimate state interest justifying the granting of marriage licenses only to couples of opposite sex. The court disagreed, noting that “tradition does not justify unconstitutional treatment. Slavery was also a traditional institution.” It also pointed out that “the definition of family has changed so much over the years that it is difficult to speak of an average American family. The traditional definition of marriage has also undergone many changes, especially as gender roles have expanded.” The court continued,
At one time, the traditional marriage was arranged primarily to further the property interests of families. Until 1849, when the first of the Married Women’s Acts was enacted, a tradition of marriage was that a married man owned all his wife’s property, while a married woman could own no property …. The traditional definition of marriage in some states excluded interracial marriages, and laws provided stiff criminal penalties for persons who married outside their race. That restriction on marriage was struck down by the U.S. Supreme Court, in 1967 …. Even as late as 1984, the traditional definition of marriage in New York included the right of a husband to be free of criminal charges for raping his wife. Similar statutes existed in at least 30 other states ….
The court conceded that even with all the changes that have occurred in the definition of marriage over the years, no court had ever gone so far as to include same-sex couples in the definition. But it countered, “the fact alone that the discrimination has been sanctioned by the state for many years does not justify it.”
The court also rejected the prosecutor’s claim that procreation was a legitimate state interest justifying the denial of marriage licenses to same-sex couples: “The prosecution acknowledges that married couples are not required to have children, or even to engage in sexual relations. No inquiry is ever made into the sexual activities or sexual preferences of a prospective opposite-sex couple before a marriage license is issued. In fact, all sorts of people can marry and have children: convicted murderers, child abusers, pedophiles, racketeers, drug pushers … the sterile and the elderly.”
The court concluded, “Same-sex relationships are based on the same thing as heterosexual unions: intimacy, companionship, love, family. Prohibiting same-sex couples from marrying suggests that marriage is about nothing but sex. This is demeaning to all couples who seek to marry and to the institution of marriage.”
Finding the law barring same-sex couples from marrying to be unconstitutional, the court dismissed the criminal charges against the two ministers. People v. Greenleaf, 780 N.Y.S.2d 899 (N.Y. App. 2004).
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