The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In New York, a wide range of people can perform marriages, including clergy, elected officials, state judges, and federal judges within the Second Circuit–that is, from New York, Connecticut, and Vermont. The New York legislature passed a bill that would allow all federal court of appeals and federal district court judges to perform weddings. However, Governor Andrew Cuomo vetoed the bill, with this message:
"This bill amends the Domestic Relations Law to expand the number of federal court judges who may perform marriage ceremonies in New York. I cannot in good conscience support legislation that would authorize such actions by federal judges who are appointed by this federal administration. President Trump does not embody who we are as New Yorkers. The cornerstones that built our great State are diversity, tolerance, and inclusion. Based on these reasons, I must veto this bill. Based on these reasons, I must veto this bill. [JB: Yes, the same sentence was repeated twice.] The bill is disapproved."
The approved bill would not have applied only to Trump-appointed judges. It would have allowed all federal judges to officiate at weddings. Yet, Governor Cuomo felt compelled to veto the bill, because the judges appointed by President Trump are not consistent with "diversity tolerance, and inclusion."
I have doubts about whether the current law is even constitutional. Co-blogger Ilya Somin opined on a similar law from Virginia, in which secular wedding officiants must be state residents. That is, state and federal judges from Virginia could officiate at weddings. But ministers of any faith can officiate, regardless of where they reside. Ilya suggested that this law may run afoul of the Dormant Commerce Clause:
The law might also be vulnerable to challenge under the Dormant Commerce Clause, which forbids state discrimination against out of state sellers of goods or services. Some wedding officiants charge for their services, and there is something of a competitive market in this industry. By banning nonresident secular officiants, Virginia explicitly protects in-state officiants against out of state competition. Although Dormant Commerce Clause law is in a state of flux, such "facial discrimination" against nonresident competitors is clearly prohibited by Supreme Court precedent.
The New York law is even more irrational than the Virginia law. Generally, dormant commerce clause challenges involve laws that limit certain jobs only to in-state residents. The argument goes that the state has some legitimate interest in keeping certain functions local. But under the current regime, federal judges from New York, as well as Connecticut and Vermont can officiate at weddings; they reside in states within the Second Circuit. New York has no control, whatsoever, over Connecticut and Vermont judges. Moreover, federal judges from nearby New Jersey or Pennsylvania, for example, are prohibited. I doubt anyone would challenge this law. It is easy enough to find an officiant in state.
Two related anecdotes.
First, Justice Kennedy refused to officiate at weddings. Why? He offered these remarks in 2013, shortly after Windsor was decided:
However, speaking earlier this month at the University of California Washington Center, Justice Kennedy said the affianced—whether gay or straight –would have to find someone else to do the honors.
"I have a rule: I don't do weddings," Justice Kennedy said. The reason has to do more with another doctrine he has championed: federalism.
"I have a theory that federal judges can't take authority from state laws," including those that regulate family relations, he said.
Still, on this matter, the Supreme Court's swing vote emphasized his own judicial modesty. "I can't figure out whether it's a valid theory or not," he said.
Second, Justice Scalia planned to officiate at Bryan Garner's wedding in Rhode Island. But state law generally prohibited out-of-state judges from officiating. As a result, Garner had to arrange for the enactment of a bill in the state legislature to allow Scalia to preside. Garner discusses this story in Chapter 10 of Nino and Me :
We pressed our Rhode Island contact, who told us that we must have a special bill enacted by the Rhode Island Legislature authorizing Justice Scalia to conduct the ceremony. Only one day was left in which this could be accomplished, but our contact assured us that they would get it done. In the end, we learned that there was actually debate on the floor of the legislature about the matter. A Republican (!) legislator had stood up and said, "We don't need an out-of-state judge coming in to Rhode Island to perform a wedding! We have plenty of able judges in this State." Fortunately, his opposition was summarily squelched. Meanwhile, just as the bill was being voted on, I received an e-mail from Justice Scalia: "No reply regarding my authorization under Rhode Island law. Should I start worrying? Nino." We were all relieved when we got news that the legislative resolution had passed—only five days before the ceremony.