Rev. David Boies

For this couple, no valid marriage means no divorce. And no divorce means Anya must file a separate lawsuit to make a claim on the apartment, perhaps under the statute that allows for the recovery of property transferred in anticipation of marriage. But this case is a lesson to modern couples who view marriage as an entirely personal and customizable arrangement. As the judge noted in this opinion, although there are several cases in New York holding that marriages solemnized by ULC ministers are invalid, 11 of the 34 weddings in last Sunday’s New York Times were performed by ministers of that type (not all in New York, however). Marriage is, at core, a legal act. And like any other legal act, the rules are best followed.

Joan Grossman provides family law columns at Verdict and this article dealt with a lower court ruling ("NY Supreme Court" is a misnomer) that is also discussed here.  The case did not really turn on the use of a ULC minister presiding over the service but the failure to follow proper local procedures when going to out of state to marry.  The opinion showed some concern on resting things on the idea that a ULC minister was not really enough, realizing the problems with line-drawing on proper "religion" and recognizing why a couple would find it personally valuable to have that option.  For instance, the ease to become such a minister allows a family member or close friend to preside without the usual complexity in becoming a minister.*

The final link also underlines just how accepted at this point is the idea that you can get married in NY by means of a ceremony presided over by a ULC minister.  This is seen and the purpose for this discussion (which I have had in the past) by a recent marriage I came across in the NYT of Elizabeth Wurtzel whose Bitch book (she also wrote Prozac Nation, but is now living a more low key life as a lawyer) I read some time back.  David Boies -- yes that one -- is a ULC minister (plus apparently her one of her bosses) and presided. The usage of such ministers is quite common here as shown by NYT wedding announcements and various fictional portrayals, leading to this account by one such person.

NYC allows ULC ministers to register as marriage officiants though one of the cases discussed by Ms. Grossman here when she a few years back discussed the issue in depth decided back in the 1980s that they need not.  The general assumption -- even by lawyers -- is that a marry solemnized (per requirements of state law -- a license isn't enough though it can be done by a civil official such as at City Hall) by a ULC minister is enough. The state is broken down into four appellate departments. One (covering three boroughs of NYC) held in the 1980s that they aren't enough.  Another more recently rejected that. And, two didn't decide to my knowledge.

Justice Scalia flagged during the same sex marriage cases the issue of the government authorizing members of the clergy to preside and wondered how we could allow them to selectively deny same sex marriages. Justice Kagan reminded him that selectivity here is not new.  But, the issue of the special power of clergy here did in general concern some people and Prof. Grossman back in 2011 flagged the problems with "relying on religious status as a proxy for one’s capability to implement the state’s marriage requirement," especially if we are going to worry about certain ministers not being religious or exclusive enough to count.

It is easy to understand why couples might choose a friend or relative, rather than a judge or religious figure whom they have only just met, to play an important part in a hugely personal and momentous occasion.

The problem with exclusion is important and as discussed by myself and the articles cited there is a general understanding in today's world that it is appropriate to have a broad option for the person to solemnize a wedding. The ULC Church provides a popular way for the average person to do that though it's rather debatable how much going to their website to be ordained on demand adds to the whole affair. But, who's to say? A modest statement that you accept their do good by your own lights tenets should could less than some other personal proclamation of faith? Anyway, marriage is personal, and the right to choose who presides is an important aspect of the overall right to marry overall.  NY's failure to make this clear is wrong.

Ultimately, the judge in the case we started with had the right bottom line -- it is important to have some basic requirements because the alternative "makes the process too easy and robs it of the seriousness that is warranted in view of the responsibilities and obligations that marriage entails."  So, some formal license procedure and maybe even the day waiting period is appropriate. That case was about paying attention to local rules and realizing being married changes things (e.g., for tax purposes).  And, it's fine to require some sort of solemnizing ceremony.  Not quite the same, but it is somewhat akin to notarizing (note: in NY, notaries don't have the power to marry people) -- you are basically taking an oath in front of a third party, who is required to know the person or ask for formal identification.  A wedding is another ceremony, like swearing/affirming in court, in front of witnesses and presided over by some person.

There are various means, secular and otherwise, to do this. The same applies to requirements to teach your children. Religious freedom provides special importance here in allowing a member of the clergy to serve as an option.  The overall freedom to choose one's own conscientious path and express their marriage as they see fit would go beyond that and provide a right to the presiding official of their choice. Quakers and others might prefer self-marriage though there the state can still require witnesses. We can simply do this at City Hall, but the governmental interest here is to provide a means, with a certain symbolic power (such as swearing or affirming witnesses), to underline the importance of act of marriage in a certain public sort of way.  Doing so in the way that honors the couple's beliefs would further this end the most.**

I guess we can simply require a license, but personally think the current system is a good one and something would be lost without it. The flexibility of modern ceremony just provides a way to use time honored things in a different style. And, how about the whole complication of certain probate judges or whatever who do not want to marry same sex couples?  Isn't there a way to simplify the process of licenses?  Just make it a matter of submitting paperwork for which there should be someone available to process. Again, unclear how this didn't come up when someone thought divorce was wrong or a couple was not "really" getting married, since the person just knew their hearts weren't truly in it or something.  I think it just is much easier to see how a couple is going against one's beliefs here.  Anyway, the license is just paperwork. The private ceremony is where the marriage is truly carried out, however they wish to do that.

This would separate the religious from the secular and for those who wish to simplify, they can simply marry at City Hall at certain designed times in front of witnesses, presided over by whatever public servant is so chosen to do that sort of thing.  I guess in some location you still might have some bigoted official causing problems but should be a way to avoid that sort of thing -- there are enough non-bigots around, including some local freethinker society or whatever to do the honors. As they should be able to.

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*  OTOH, a few courts have been troubled by the simplicity of becoming a ULC minister, some degree of complication in choosing them deemed a core reason why members of the clergy are given the authority to preside. This provides them with a certain cachet not present if any Joe Smoe can be a minister.

My belief is that it is done for religious reasons or we would trust some other large institution to so choose. Various public officials, including federal judges in various cases, are allowed to preside. But, when it comes to private officials, religious ones are given special powers basically for First Amendment reasons.  For the same reasons, picking and choosing among them on grounds the religion is not exclusive enough or the like is problematic.

** The ULC Church is a popular choice here as noted in the text and at this point might be seen as almost semi-official as an option. It is just an example and a couple should have the right to have a secular option too.  The ULC Church does seem more serious on some level than more satirical things like Church of the Flying Spaghetti Monster, but we shouldn't be in the business of line-drawing there.  After all, such a "minister" would in itself possibly be an expression of one's beliefs in the long run anyway.