By Mike Dorf
DoL has heretofore been an Anthony Weiner-free zone, and while I continue to find nothing especially law-blog-worthy about this scandal, Weiner's apology to former President Bill Clinton last week did pique my interest--not in Weiner's recent troubles themselves, mind you, but in a related question. Weiner's apology to Clinton prompted Jon Stewart to ask snarkily: "For what? Copyright infringement?" Nicely played. In fact, however, Weiner was expressing contrition because Clinton had officiated at the wedding of Weiner and Huma Abedin. That led me to wonder: By what authority did he do so? After I posed this question to a colleague last week, said colleague helpfully directed my attention to Article 3, Section 11 of the New York Domestic Relations Law. It allows a wedding to be solemnized by:
1. "A clergyman or minister of any religion, or by the senior leader, or any of the other leaders" of the Ethical Culture society;
2. Mayors and various other local government officials;
3. Federal and state judges and various other judicial officials;
4. Anybody or nobody, so long as there is "a written contract of marriage signed by both parties and at least two witnesses, all of whom shall subscribe the same within this state, stating the place of residence of each of the parties and witnesses and the date and place of marriage, and acknowledged before a judge of a court of record of this state by the parties and witnesses in the manner required for the acknowledgment of a conveyance of real estate to entitle the same to be recorded."
Three seconds of searching the web turned up a couple of short pieces (here and here) from the time of the Weiner/Abedin nuptials that question Clinton's authority to conduct marriage ceremonies. They point out--correctly--that being a former President is not a basis for validly solemnizing a wedding in New York State. However, neither piece raises the possibility that the wedding of Weiner and Abedin was solemnized by virtue of sub-provision 4. If so, Clinton's participation would have been entirely for show--so long as Weiner and Abedin filed the necessary signed and witnessed paperwork and had it properly acknowledged by a judge.
For now anyway, Abedin is standing by her man. Here's the thing, though. If Weiner and Abedin did not file that paperwork and instead relied on Clinton's irrelevant status as former President, then their marriage would be invalid under Section 11. The marriage would not simply be voidable at the request of either spouse; it would be void, making Abedin's and Weiner's wishes to remain married irrelevant--unless they were to file the proper paperwork or repeat the ceremony with an authorized official. Even then, there would be questions about how long one may delay before filing the paperwork and whether they would have counted as married in the interim.
So much for Weiner. Now a few thoughts on the New York statute. One oddity of the statute is the preferred place it gives to the Ethical Culture Society. I read through the notes in McKinney's Annotated New York Statutes and could not find the origin of the specific listing for Ethical Culture, but it has been part of the statute since at least 1942, when a NY State trial court found that an earlier restriction of the statutory definition of "religion"--which allowed only religions recognized by the prior census--was a violation of New York's state constitutional protection for free exercise. The judge urged, and subsequent analyses of the statute adopt, a wide definition of religion.
Whether Ethical Culture itself is a religion is an interesting question. The NY Ethical Culture website FAQ page says: "For those who view religion as a set of values to which people are committed and in terms of which they find a faith to live by, Ethical Culture is considered a religion." That's fine as far as it goes, but it doesn't tell us whether Ethical Culture is a religion in the eyes of the law. I think the right answer is probably that it depends on the context. We might infer from the fact that Ethical Culture gets a separate mention in Section 11 that it is not a religion; if it were a religion, it would be covered by the general provision permitting clergy to solemnize weddings, and so the special mention wouldn't be necessary. Alternatively, we might think that the NY legislature thought that Ethical Culture is a religion in this respect, but worried that other people might not realize that, and so included the additional provision out of an abundance of caution.
Suppose that we say Ethical Culture is not a religion. Why, then, of all the organized secular belief and value systems one might have, should Ethical Culture alone qualify as able to solemnize wedding ceremonies so that the couple does not have to resort to the written contract option? How about the Center for Inquiry (which is a NY affiliate of the national secular humanist organization)? Or New York City Atheists? I'm not suggesting there is anything unconstitutional about the favored position that the statute gives to Ethical Culture relative to other, organized secular belief systems, just that it's peculiar.
More broadly, the whole statute is somewhat peculiar (although in a way that is common in other states too). The state has an interest in solemnification of marriage: Given the legal responsibilities marriage entails, the state may take steps to ensure that people do not enter the institution without adequate reflection. A ceremony performed by a member of the clergy or a government official can serve that function. But given subsection 4, so can the signing of a document with witnesses. Indeed, in other contexts in which people make very important decisions--such as purchasing a home or writing a will--solemnification occurs through signing, witnessing, and perhaps notarization. Because no special provision is made for solemnification by clergy for these other decisions, it's not clear why it is needed for a marriage.
People can, of course, have religious ceremonies to marry them in the eyes of their religious institutions. But the notion that those ceremonies should do double duty and also solemnize the marriage in the eyes of the law seems like more trouble than it's worth, essentially an anachronism that reminds us of a time when ecclesiastical authorities exercised state power. Today, a cleaner, simpler version of Section 11 would make subsection 4 the only option for everyone.