Arresting Ministers

March 16, 2004 | 4 comments
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The State of New York is charging two Unitarian Universalist ministers with a misdemeanor for solemnizing a marriage without a liscense. (Story here) The Unitarians have long granted gay couples religious unions, but they have not exercised the power delegated to them by the state to create legal marriages. Given the ubiquitious comparisons between the gay marriage legal kerfuffle and the anti-polygamy crusades, is there a parallell here?

First you have to understand the legal status of Mormon polygamous marriages in the nineteenth century. They were note purely “private” or “religious” ceremonies. Rather the territorial legislature granted to the church a corporate charter that provided, among other things, that no marriage solemnized by the church could be questioned in any other forum. Thus, they didn’t go all the way to making polygamous marriages de jure valid, but instead allowed one to raise solemnization by the church as a complete defense. Furthermore, the legal status of these marriages mattered, especially because of inheritance issues. Under the 19th century common law, a bastard could not inherit property from his father. Thus, if a man died intestate and the children of the man’s later wives tried to claim an inheritance, in theory his first wife and her children could raise bastardy as a defense. The church corporate charter precluded this move. This did a couple of things. First, it no doubt helped to shunt a lot of potential litigation into the church court system by making a lot of potential legal claims worthless. Second, it no doubt provided a deterrent against a lot of litigation that would otherwise have taken place between sometimes fractious plural families, see, e.g., the mamouth litigation between the church, the estate of Brigham Young, and his various plural families.

To my knowledge, the federal government never attempted to prosecute anyone for solemnizing plural marriages. (If I am wrong on this, I would love to look at the cases — please tell me!) The federal government, however, did move to revoke the church’s corporate charter, first in the Morrill Act of 1862, and later in the Edmund’s Tucker Act. This, however, put the federal government in the position of skirting the very edges of its constitutional authority in the 19th century. In the Dartmouth College Case, 4 Wheat. 518, the Supreme Court had held that a corporate charter was a contract that could not be abrogated by the state because of the Contracts Clause of the Constitution. Some jurists thought that there was a similar limitation on federal power in the 19th century. In Late Corporation of the Church of Jesus Christ of Latter-day Saints, where the Court finally upheld the Edmunds-Tucker Act, you have one of the few vigorous dissents in any of the polygamy cases. As I recall (don’t have time to look up the case), it was by Justice Field and it was on the issue of congressional power to revoke a duly vested corporate contract.

In the context of this Unitarian Universalist case, it would be similar to revoking their ability to perform marriages rather than crimnally prosecuting them for the misuse of that authority.

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4 Responses to Arresting Ministers

  1. Michelle on March 16, 2004 at 3:00 pm

    I’m straining to find a similarity here. I doubt that the NY legislature has granted the Universalist church a charter defining their rights. Rather, the state allows officials from all churches to solemnize marriages (marriage as defined by the state) as proxy for the state. The question here is not whether the state is infringing on a religion’s views of marriage but whether a civil power granted to a religion must be used within the civil law. It must.

    Am I missing your parallel?

  2. Dave on March 16, 2004 at 4:35 pm

    I suppose the comparison might be: Why didn’t the feds go after those solemnizing plural marriages in Utah (as in the Post story) rather than going after those in polygamous marriages?

    As a practical matter, they had no way of knowing who performed the plural marriages. They had a devil of a time even establishing in court that there were plural marriages (Mormons, of course, being singularly unhelpful in that effort), which is why the feds resorted to cohabitation as the focus of enforcement after they got their hands on a good cohab statute.

    Nate raises a legal issue that has not, as yet, entered the growing discussion on gay marriage, namely the complication of the state’s liberal delegation to churches and their ministers of the right to solemnize marriages that are recognized or given legal effect by the state. In many countries no such delegation occurs and young couples get married twice, once at city hall and once at the church of their choice. Or not, just once at city hall.

    I wonder how long it will be before some state, to prevent adventurous ministers from performing gay marriages as in this article, simply decides to revoke all delegations to churches and requires all state-recognized marriages to be performed by a government official at city hall?

  3. Kaimi on March 16, 2004 at 9:44 pm

    Eugene Volokh also thinks the grounds for prosecution are pretty weak. See: http://volokh.com/2004_03_14_volokh_archive.html#107947321407733832

    “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.

    It seems to me that this can’t constitutionally be a basis for prosecution, at least in the absence of some fraud or complicity in fraud on the minister’s part (which would make the speech into constitutionally unprotected speech). And, I stress again, there is no fraud here: Any “by the power vested me in the State of New York” line would clearly be understood as an expression of the minister’s opinion about what the New York Constitution, properly understood, ought to mean, not as an attempt to fool anyone into believing something that is factually untrue.”

  4. Nate Oman on March 16, 2004 at 11:45 pm

    Kaimi: suppose that the ministers are prosecuted and they raise their interpretation of the NY constitution as a defense. The court squarely faces the issue, and rules against them. At this point, it seems to me that they are asserting “mistake of law” as a defense, which as we know is no defense at all.

    Mind you, I am inclined to agree with Eugene, but that my be more my judgment that these are stupid prosecutions than a legal judgment. I would need to look and think through the statutes.