Your point sounds similar to Justice Scalia's characterization of voting in Nevada Commission on Ethics v. Carrigan

* * * * * * * * * * * * * * * * *
David Orentlicher, MD, JD
Samuel R. Rosen Professor of Law
Co-Director, Hall Center for Law and Health
Indiana University School of Law-Indianapolis

Adjunct Professor of Medicine
Indiana University School of Medicine

530 W. New York Street
Indianapolis, IN  46202-3225
(317) 274-4993 (phone)
(317) 274-0455 (fax)
dorentli@iupu...
________________________________________
From: conlawprof-bounces@list... [conlawprof-bounces@list...] on behalf of Malla Pollack [mallapollack3@gmai...]
Sent: Wednesday, July 13, 2011 11:30 AM
To: Andrew Koppelman
Cc: conlawprof@list...; conlawprof-bounces@list...
Subject: Re: Challenge to Utah polygamy law

I haven't been following this thread from the beginning, so please
forgive me if I repeat something already covered.
A marriage ceremony is "performative speech" but the First Amendment
seems to be about non-performative speech.  Performative speech means
that by saying (or writing) specific words something is made to happen
-- as in signing a document memorializing an agreement you turn that
paper into a legally binding contract.   I am not sure that such
performative speech is (or should be) covered by the First Amendment
because performative speech is an "action."  Does anyone have any
insight on this issue?
Malla

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