The issue Andy Koppelmen described was considered in the fractured en banc opinions in Shahar v. Bowers (11th Cir. 1997).  Robin Shahar and her partner undertook a religious marriage and held themselves out as married.  Ms. Shahar's job offer as an attorney with the Georgia state AG's office was then rescinded.  The majority upheld the AG's action under a Pickering/Connick test, assuming arguendo some sort of First Amendment interest in the marriage and related public behavior.  Ms. Shahar's visible behavior as married could reasonably be understood to undermine the AG's confidence in her judgment and the public's confidence in the AG's office, at a time when many pending matters involved clams of LGBT rights.   A couple of the dissents argued that the AG had not taken seriously enough the dual function of Shahar's marriage, and that her religious claims should have been taken more seriously by the AG.  And one dissent takes the majority to task for using scare quotes to describe the "marriage", thus prejudging the issue of how seriously it should be taken.

As I recall, the elusive right of intimate association was broached but not discussed much in the opinions.


Marc R. Poirier
Professor of Law and Martha Traylor Research Scholar
Seton  Hall University School of Law
One Newark Center
Newark, NJ 07102
973-642-8478 (work)
201-259-0896 (cell)
973-642-8546 (fax)
Selected articles and drafts available at http://ssrn.com/author=1268697

Somebody has to plant the seed so that sanity can happen on this earth. -- Chogyam Trungpa, Rinpoche




-----Original Message-----
From: conlawprof-bounces@list... [mailto:conlawprof-bounces@list...] On Behalf Of Andrew Koppelman
Sent: Wednesday, July 13, 2011 12:21 PM
To: 'Malla Pollack'
Cc: conlawprof@list...; conlawprof-bounces@list...
Subject: RE: Challenge to Utah polygamy law

Malla's question is a good one.

The following behavior was pretty common in some gay circles, before
same-sex marriage was legal anywhere in the United States.  A same-sex
couple would hold a marriage ceremony, sometimes of a religious character,
sometimes not.  Thereafter, they would hold themselves out as husband and
husband, or wife and wife, to any audience that they thought would not
respond negatively.  Everyone understood that the marriage had no legal
effect.  The speech was nonetheless performative.

Is there any doubt that an attempt by the state to prohibit these actions
would raise a free speech issue?

-----Original Message-----
From: Malla Pollack [mailto:mallapollack3@gmai...]
Sent: Wednesday, July 13, 2011 10:30 AM
To: Andrew Koppelman
Cc: Marty Lederman; conlawprof-bounces@list...;
conlawprof@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

On Wed, Jul 13, 2011 at 10:20 AM, Andrew Koppelman
<akoppelman@law....> wrote:
> Even this language isn't necessarily confined to religious marriages. 
There
> are lots of secular people who perform marriage ceremonies, in which they
> purport to marry one another with no public official present.  (Typically,
> before or afterward, they go down to city hall and get the license.)
>
>
>
> It still seems to me that the statute prohibits a certain kind of speech,
> without regard to whether the speech is religious or not.  It's just
speech
> that takes place at a certain kind of ceremony, religious or otherwise.
>
>
>
> From: Marty Lederman [mailto:lederman.marty@gmai...]
> Sent: Wednesday, July 13, 2011 9:53 AM
> To: Andrew Koppelman
> Cc: conlawprof@list...; conlawprof-bounces@list...
> Subject: Re: Challenge to Utah polygamy law
>
>
>
> Andy:  The statute doesn't proscribe purporting to be married, i.e.,
> declaring to the world that one is married (which would raise a serious
Free
> Speech concern, as you suggest); instead, it criminalizes purporting to
> marry.  And in Holm, the Utah Supreme Court made clear that what this
covers
> is the religious ceremony itself -- the solemnization that occurs there:
>
>
>
> The "purports to marry" language contained in the bigamy statute is not
> confined to legal marriage and is, in fact, broad enough to cover the type
> of religious solemnization engaged in by Holm and Stubbs. . . .
>
>
>
> [W]e read the plain language of our bigamy statute as prohibiting an
> individual from claiming to marry a person when already married to
another.
> Further, we conclude that the term "marry" is not confined to legally
> recognized marriages. . . .
>
>
>
> Applying the definition of "marry" outlined above to the facts presented
in
> this case, there can be no doubt that Holm purported to marry Stubbs. The
> undisputed facts establish that Holm stood before an official of the FLDS
> Church, Warren Jeffs (son of then-FLDS prophet Rulon Jeffs), with Stubbs
at
> his side and responded affirmatively to a vow asking the following
question:
>
>
>
> Do you Brother [Holm], take Sister [Stubbs] by the right hand, and receive
> her unto yourself to be your lawful and wedded wife, and you to be her
> lawful and wedded husband, for time and all eternity, with a covenant and
> promise, on your part that you will fulfil all the laws, rites and
> ordinances pertaining to this holy bond of matrimony in the new and
> everlasting covenant, doing this in the presence of God, angels, and these
> witnesses, of your own free will and choice?
>
>
>
> At the ceremony, Stubbs wore a white dress, which she considered a wedding
> dress. Throughout her testimony at the trial court, Stubbs referred to the
> ceremony as a marriage. As mentioned, the ceremony was officiated by a
> religious leader and involved vows typical of a traditional marriage
> ceremony. See Utah Code Ann. § 30-1-6(1) (Supp.2004) (stating that
religious
> officials who are older than eighteen and "in regular communion with any
> religious society" are empowered to solemnize a marriage). In short, the
> ceremony in which Holm and Stubbs participated appeared, in every material
> respect, indistinguishable from a marriage ceremony to which this State
> grants legal recognition on a daily basis.
>
>
>
>
>
> On Wed, Jul 13, 2011 at 10:29 AM, Andrew Koppelman
> <akoppelman@law....> wrote:
>
> I'm puzzled by the unanimity in this discussion on the question of whether
> this is a religious liberty issue.  There are two rights here, raised by
the
> two sections of the statute cited by Marty.  The first is the right to
free
> speech, which is violated by section (i) of the statute.  Absent an
> allegation of fraud, the state has no legitimate interest in telling me
that
> I can't say I'm married to two women, and the statute has no fraud
> requirement.  (That's why a state that refuses to recognize same-sex
> marriage could not make it a crime for a same-sex couple to tell their
> friends that they are married.)  Section (ii) is likely unconstitutional
> under Lawrence and Moore.  I don't understand how religion is supposed to
> enter into it.  It happens that Mr. Brown wants to engage in this conduct
> for religious reasons, but I don't understand why everyone thinks that
needs
> to be an element of his legal claim.
>
>
>
> From: conlawprof-bounces@list...
> [mailto:conlawprof-bounces@list...] On Behalf Of Marty Lederman
> Sent: Tuesday, July 12, 2011 6:41 PM
> To: hamilton02@aol....
> Cc: conlawprof@list...; conlawprof-bounces@list...
> Subject: Re: Challenge to Utah polygamy law
>
>
>
> As of 2006, at least, the Utah bigamy law made it a crime for a married
> person to "(i) purport[] to marry another person or (ii) cohabit[] with
> another person."
>
>
>
> The state apparently has not enforced the cohabitation prong for many
years
> -- it would, of course, cover a great number of married persons living
with
> their lovers -- and if it were to do so, it presumably would be subject to
a
> substantial Lawrence/Moore-type of due process challenge.  Perhaps there
is
> some threat of such prosecution here on a cohabitation theory, which would
> explain Turley's due process focus.
>
>
>
> The action in actual Utah cases, then, has been on the first prong --
> prohibiting a married person from "purporting" to marry a second spouse.
>  This does not refer to attempting to obtain a second civil marriage
> certificate from the State of Utah -- the State will only grant an
> individual one such certificate of civil status at a time, and that
> restriction on the state's conferral of civil marriage status is
undoubtedly
> constitutional.
>
>
>
> Instead, the prosecutions occur where a married person engages, not in
> another civil marriage ceremony, but in a religious marriage ceremony, and
> obtains the religious (but not civil) status of marriage with a second
> person.  In this sense, the statute is directed at, and singles out for
> punishment, a religious ritual itself, and the conferral of a religious
> status on two persons.
>
>
>
> Were it not for the stare decisis effect of Reynolds, I can't imagine why
> this wouldn't be a Free Exercise violation, especially after Lukumi.  I am
> no fan of bigamy, but is there any good argument why this statute should
be
> considered constitutional?
>
>
>
> If I recall correctly, the issues are teed up very nicely in the three
> opinions of Justices of the Utah Supreme Court in State v. Holm, 137 P.3d
> 736 (2006).  The majority rejected the religious freedom arguments; but my
> recollection is that I found the dissent more persuasive when I read it
five
> years ago.
>
>
>
>
>
>
>
>
>
>
>
>
>
> _______________________________________________
> To post, send message to Conlawprof@list...
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
> Please note that messages sent to this large list cannot be viewed as
> private.  Anyone can subscribe to the list and read messages that are
> posted; people can read the Web archives; and list members can (rightly or
> wrongly) forward the messages to others.
>


_______________________________________________
To post, send message to Conlawprof@list...
To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof

Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.

_______________________________________________
To post, send message to Conlawprof@list...
To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof

Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.