New York legislature enacted a bill to allow all federal judges to officiate at Weddings. Governor Cuomo vetoed the bill because Trump

The current law may violate the Dormant Commerce Clause.

|The Volokh Conspiracy |

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.

NEXT: Today in Supreme Court History: December 25, 2009

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  1. “”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.”

    Shouldn’t Kennedy, of all people, know that federalism and judicial modesty are no longer in vogue and shouldn’t be obstacles for him?

  2. I find it starkly amazing at times just how petty the left can be.

    1. A clearer demonstration of TDS does not (yet) exist.

    2. While your president insults a teenage girl on Twitter. Yes, I’m sure you’re shocked — shocked! — at the pettiness you selectively see on the “left.”

      1. “She seems like a very happy young girl looking forward to a bright and wonderful future. So nice to see!”

        Yep. What a horrible insult.

      2. This isn’t “insults particular teenage girl”; This is “enacts policy to disadvantage teenage girls in general because one teenage girl’s dad insulted you”.

      3. The thing is about Trump that the left never seems to get, is that he only counter-punches.

        1. I mean, that’s pretty much as big a lie as anything else said about Trump that isn’t negative.

          What’s worse is that Trumpkins don’t get that “He started it” is not actually a defense.

          1. Ever heard of self-defense? But oddly enough, you’re actually right for once, the President did start it. By getting elected. And I look forward to the leftist breakdown upon his landslide reelection. I hope you have something really special planned. A full body pink suit? (please don’t make it form fitting).

            1. ” I look forward to the leftist breakdown upon his landslide reelection.”

              I hope you have a backup plan, just in case your wishful thinking isn’t as accurate as you hoped it was.

              1. I bet you also thought the Labour Party would soar to victory.

                1. I don’t give a fuck about the Labour party.

                  So, you lost THAT bet.

                  1. Maybe I was making a comment on UK politics or maybe I was noting that Democrats maybe be facing the same public rejection as Labour. Rhetorically, thinking may even be more important than using expletives James.

                    1. ” Rhetorically, thinking may even be more important than using expletives James.”

                      Well, at least *I* managed to do ONE of these things. You’re 0-fer-2.

          2. I guess let me clarify, maybe that will help clear things up for you. When Trump counter-punches, it’s against *individuals* who attack him personally first. Trump attacks lots of things, like NAFTA or NATO or China all the time. But when celebrity XYZ or politician ABC attack him personally, then he responds in kind. After than, Trump supporters pile on, and for the celebrity, it usually doesn’t end well. However, for some reason he’s avoided counter-punching Eminem.

        2. “The thing is about Trump that the left never seems to get, is that he only counter-punches.”

          This is a way of saying he’s ineffective and only capable of reacting, not acting. I think the left understands that quite well.

        3. Mocks a disabled man for his disability.

          Punches down at a 16 year-old girl.

          Grabs pussies because when he’s a star they let you do it.

          Yeah, your “he only counter-punches” defense seems legit.

      4. When a teenage girl espouses adult political beliefs, then she can’t use her “teenage” status as a shield from criticism.

        1. That’s the key thing: if Thunberg wants to be treated like a child, fine, no problem, but that includes staying off the political state. If she wants to be treated like an adult, well, this is how adults are treated.

          1. The political stage needn’t include accusations of mental illness and insults.

            You can say it was fair game, but most people don’t seem to agree.

            Of course, as a woman who advocates a policy identified with the left, RestoreWestern looks forwards to her meeting her fate after the collapse of civilization leads to the long-awaited anti liberal purge he fantasizes about.

            1. She admits to mental illness, and she and her supporters at places like the NYT and WashPo use it as part of her “shield”.

              When you volunteer to get on the public stage, and when you bring your issues into the public debate – they become part of the public debate! If she didn’t want people talking about her mental illness, she shouldn’t have brought it up in the first place.

              1. Good lord, you Trump supporters will support anything he does.

                1. Good lord, you Trump opponents will seize on any flimsy excuse to attack him.

                  1. Meh. He chose to put himself on the public stage, and his supporters chose to say “yah, that guy, he speaks for me”. Criticising the choices people have made is valid.

            2. “The political stage needn’t include accusations of mental illness and insults.”

              Does that apply to everyone on the political stage, or only a select few?

              1. I dunno – lets start with children, and move on from there.

                1. Again, you don’t get to espouse political beliefs on issues of public interest, call for sweeping and draconian changes, and then claim that as a “child,” you are immune from criticism.

                  1. Grown-ups engage with the issues of public interest. It’s childish to hurl personal insults. You’re supporting the childish side of this debate.

            3. No, I don’t want women purged. I just want them to stay out of the political arena for good.

              1. I’m sure they wish the same of you. It’s good to want things, it gives your life purpose.

          2. “if Thunberg wants to be treated like a child, fine, no problem, but that includes staying off the political state. If she wants to be treated like an adult, well, this is how adults are treated.”

            Not by grownups, though.

            1. Yes, by adults. She’s not talking about which Barbie doll is the best. She’s talking about the West voluntarily destroying its own economy.

              1. No, that’s you. The difference, apparently, is that she knows what she’s talking about.

          3. No, adults are not generally treated this way. Or at least shouldn’t be. It used to be understood as recently as, oh, 2008 at least, that personal insults of the type Trump has lobbed at Thunberg were generally not kosher, particularly when aimed by the President of the United States at a Gold Star family, a disabled man, a child, regardless of whether they ventured into politics.

            Furthermore, this your idea that child who makes political statements and gains notoriety for her political efforts should be treated as an adult is silly. She absolutely should expect to be engaged on substance. But it is very unbecoming to personally insult a child, whether they are an Olympic athlete, a political activist, or a TV actress. Yes, those are adult arenas, but we still expect the general rules of civility to be observed even more rigorously for children operating in those arenas.

            Trump has no class. Just admit that.

            (Note: Cuomo’s remarks are so stupid, they are an embarrassment not just to thinking people, but to primates generally.)

    3. I was struck by the same thing. The pettiness of it all. Then again, this might be big brother ‘sticking it’ over the Fredo follies.

      One implication: If Team D ever has the House and Senate, they will move to impeach the judges POTUS Trump put onto the bench. And probably Kavenaugh too.

      1. I’ve already seen talk that one of the goals of impeachment is to strengthen the case for packing the Court to negate Trump’s appointments.

        Which, unlike impeachment of judges, only takes a bare majority in both chambers and a President who won’t veto the bill.

        In fact, serious Democratic figures, law professors, have been proposing a series of actions which, while technically constitutional, would leave the right with no choice but revolution or perpetual subjugation. Naturalizing all illegal immigrants. Making the territories into states. Packing the courts.

        The left doesn’t view politics as a perpetual game where sometimes you win, sometimes you lose. They see it as a game where eventually they’ll be on top, and then the game ends. “Democracy is like a train. When you reach your destination, you get off.”

        1. The left doesn’t view politics as a perpetual game where sometimes you win, sometimes you lose. They see it as a game where eventually they’ll be on top, and then the game ends.

          Project much?

          I’d say that’s a pretty good description of what the right is trying to do.

          while technically constitutional, would leave the right with no choice but revolution or perpetual subjugation.

          So much for rule of law and so on. Let the Supreme Court make a ruling that displeases Bellmore and it’s revolution. The right does plenty of “technically constitutional” BS, but of course your idea of what’s acceptable and what isn’t depends entirely on who’s doing it.

        2. “The left doesn’t view politics as a perpetual game where sometimes you win, sometimes you lose. They see it as a game where eventually they’ll be on top, and then the game ends.”

          So Karl Rove, and his talk of “permanent majority”, was a leftist, then?

    4. Yeah- they’re the only ones doing things for petty reasons. What a bunch of *libtard snowflakes.*

      Amazing the cognitive dissonance.

    5. As though there was no one on the left in the NY legislature that passed this bill.

      Sometimes pettiness isn’t partisan, Brett.

      1. What Cuomo did was petty and partisan. The fact that some members of his party in the NY legislature did not sink to his level on what should be a routine, technical matter, does not negate his pettiness.

        1. Then criticize Cuomo, not “the left.”

    6. The whole left, Brett?

      I find it starkly amazing at times how readily you generalize from one foolish decision by one individual to all your imagined enemies.

      1. I am glad to hear that you will NEVER generalize against conservatives, the Right, Trump supporters, or even the alt-right ever again.

        Because that would be starkly amazing, given your condemnation of someone generalizing one foolish decision by one individual to all his imagined enemies.

        1. Point to some other members of “the left” applauding this particular move (or whichever one is being criticized at the time), then talk about how “the left” has adopted that position.

          1. What does “this particular move” have to do with anything? Bernie was making a general statement, as was I. Are you trying to change the topic again?

            1. “What does “this particular move” have to do with anything?”

              It doesn’t, as continuing to read my original comment shows, by explicitly allowing substitution of an entirely different one. Is English not your native language?

              ” Bernie was making a general statement, as was I”

              As was I. A statement that continues to be true and relevant.

        2. Toranth, if you have to go ‘I know you are but what am I’ in response, maybe don’t bother to answer.

          1. I didn’t.
            By the way, what does your comment add to the discussion? Maybe you shouldn’t bother to answer if you are just going to make childish attacks.

            Pointing out the extreme hypocrisy of bernard’s comment is making the point that his statement was obviously not a position he actually holds. And it is obvious you don’t hold it, either, or you wouldn’t be attacking me.

            1. “By the way, what does your comment add to the discussion? Maybe you shouldn’t bother to answer if you are just going to make childish attacks.”

              Given your lack of following your own advice as quoted here, it is apparently not that important to follow.

  3. Under this theory, would it violate the dormant commerce clause for states to reserve judicial decision -making to judges and exclude federal judges or self-appointed commercial arbitrators from deciding state court cases if they want to? Why not in criminal cases? The same argument could be used – reserving presiding over criminal cases to state judges and local-resident juries violates the dormant commerce clause by preventing out-of-state actors from competing for the business of doing so. After all, judges and jurors get paid, so everything they do is also a commercial act, right? What’s the difference?

    Weddings, like judicial adjudications, would appear to be quintessential non-commercial activities. Perhaps among the few that can still be considered indisputably non-commercial.

    Indeed, if marriage is a commercial activity, why can’t government regulate the use of contraceptives in it, a commercial product used for a commercial purpose?

    1. I see what you did there. Not taking that bait.

    2. While I agree that the Dormant Commerce Clause argument is weak, your arguments do not address why.

      States authorize their judiciary to try criminal and civil cases in their borders. You have to be qualified by the state to do so. A federal judge is not a state judge, so has no authority from the state.
      Federal courts do have some authority to try state claims, which have been granted them by the diversity and supplemental jurisdiction statutes passed by Congress. Nothing states can do about it. Otherwise, federal judges have no authority to just set up shop and try state-law cases.

      1. ” Otherwise, federal judges have no authority to just set up shop and try state-law cases.”

        You’re overgeneralizing. First off, other states can (and do) hear state-law claims. As for the feds, in addition to hearing pendant state-law claims with federal claims and diversity claims, federal judges can set up ADR fora for people to settle their state-law legal claims… it’s not a limit of the state, but a limit of their time that keeps them from doing so. For that matter, people with little to no legal training or experience can do so, as well. The state doesn’t have anything like a monopoly on settling state-law claims.

    3. ” if marriage is a commercial activity, why can’t government regulate the use of contraceptives in it, a commercial product used for a commercial purpose?”

      Your sequitur there is just the tiniest bit non-. The fact that some people make money in “the wedding industry” doesn’t make everyone and every thing involved “commercial”.
      If contraception is being used commercially, that’s not a wedding.

  4. A person conducting a marriage ceremony within a state is representing that state, and so should be required to be authorized by the state to do so. Where the person lives should not be relevant.

    But I don’t see why an arbitrary federal judge with no direct connection to the state government should automatically have such authority. Being appointed a federal judge only gives a person power within the federal courts, and within the scope of that appointment, and nowhere else.

    1. Did you miss this: “But ministers of any faith can officiate, regardless of where they reside. ”

      The state already permits people without any connection to the state government to automatically have such authority.

      1. Gosh, what a shocking, out-of-left-field twist! The government lets people who are in the business of offering religious services, which in pretty close to every religion includes officiating weddings… get this… officiate weddings! Next things you know, these religious folk will be allowed to lead sermons, too.

    2. “A person conducting a marriage ceremony within a state is representing that state”

      Not necessarily. They may be representing a religious organization. Note that some marriages are not recognized by the state, and therefore do not require any state representation.

  5. Putting aside the bizarre and petty motivation, what is the logic behind this? Has Trump just appointed fewer judges to the Second Circuit?

  6. What an absurd, petty act. “Take that, Drumpf!” I guess.

    I fully expect some BS indictment of Trump for some imaginary crime coming from Manhattan DA Cyrus Vance, because that’s how Democrats roll, though I imagine his office is debating when exactly it could do the most political damage. (Cf., indictment of Rick Perry).

    1. “I’m taking my football and going home!” squealed the local official. Except it wasn’t his football.

  7. Governor Cuomo: Look everyone, I just cut off my nose to spite my face!

  8. I hope the Federal judges note the insanity when reviewing NY’s many fishing expeditions to try to manufacture some criminality by Trump.

    1. And how would that work, exactly?

      ‘Taking judicial notice that your governor is super lame, we declare your attorney generals’ office’s actions to be preemptively illegitimately partisan; due process demands New York get a different process when in federal court compared to other states.’

      You’re not the first to propose such a judicially enacted two-tiered justice system. Based on the exact animus analysis you (and the SCOTUS) poo-pooed last year.

      A double standard you’re proud of is still a double standard.

      1. It would work by moderating the judge’s general tendency to assume that a given action must have a basis besides animus, perhaps altering some judgment calls on the margins. I don’t expect it would have a major impact.

      2. Ok Sarcastr0, but can we substitute “sad and vindictive jackass” for “super lame”? And to show my good faith, let’s make it a rebuttable presumption that the the NY AG’s actions are illegitimately partisan.

        1. Yeah, that’s still a judicially created two-tiered justice system.

          We don’t do blanket guilt, or generalized presumptions of bad faith, in the US.

          Something about the right to petition makes us titchy about such rules.

          Y’all on the right need to realize that the justice system is a system, not just a tool to vent your spite.

          1. Why are y’all on the left completely devoid of a sense of humor? It’s not a good sign.

            1. Given how crazy you are about Trump & Impeachment (landslide? Really?!), I’m still not sure you were joking, or just backpeddaling now.

              Brett and Kaz are serious, BTW.

              1. You seem to be confused. It’s your comments that I was mocking. An inability to be self-reflective. Is that why the left has no sense of humor? And ask the Labour Party how they feel about landslides.

              2. “You seem to be confused. It’s your comments that I was mocking”

                If you have to explain a joke, it wasn’t well-executed.

                /constructive criticism

                1. Wit is wasted on fools and the hard left, but I repeat myself.

                  1. “Wit is wasted on fools and the hard left”

                    Quite possibly true. But how would you know?

  9. Just a historical note about SCOTUS judges officiating at weddings, Justice Thomas officiated at one of Rush Limbaugh’s weddings, and Justice Ginsburg has officiated at gay weddings. Most apparently do former clerk weddings from time to time.

  10. In the State of California – anyone can officiate a wedding ceremony if they merely register and officiate the ceremony within a set number of days. This seems to make a lot more sense that restricting that role in a wedding to certain classes of individuals.

    After all – it’s just paperwork.

  11. I’m sure Trump has nominated judges to the second circuit.

  12. Not sure about this, but I believe that in Pennsylvania, commonwealth law allows a couple to declare themselves married without the requirement that there be an officiant.

    Whistling Willie

  13. Government at all levels should just get out of the marriage business altogether. It is rapidly becoming obsolete in any event. It is estimated that around 40% of the children born in the US are born outside a marriage.

    We have a large and elaborate legal system that is well equipped to resolve issues between former partners who have decided to go their separate ways.

    The limitations imposed by government on individuals wishing to cohabitate are steadily falling away.

    People wishing to have some form of legal agreement could avail themselves of partnership agreements assigning arbitration to a mutually agreeable third party, including a religious tribunal or even the AAA.

    1. “Government at all levels should just get out of the marriage business altogether. ”

      I have been saying this for years. Governments controlling marriage is an artifact of “religion as government” and the feudal system.

      There is a valid government and public interest in the stability of the family unit, but not enough of one in my mind to control the type of personal relationships people enter into.

      Any valid public interest can be satisfied with the requirement of a civil contract, which does not require permission from the government.

      1. ” Governments controlling marriage is an artifact of ‘religion as government’ and the feudal system.”

        Nah. The point of either one is to have a neutral arbiter and permanent-ish record in case there is a later dispute as to whether a marriage exist(ed), and if so, when did it come about? This was useful in the days before Maury and the DNA paternity test.

    2. Modern rules make fewer and fewer distinctions between marriage and shacking up, while at the same time broadening the definition of marriage into…new territory, let’s just say.

      The government’s favoritism toward marriage has already been watered down a lot. Marriage can still serve as a tax shelter for certain couples, and makes jointly owning real estate easier, etc., etc., so I’m not saying legal distinctions have been obliterated, but that is the tendency if things keep going as they have been.

      1. If’n you don’t like the benefits of a legal marriage, don’t get one.

  14. I’m not sure how designating which (if any) judges can preside over weddings interferes with interstate commerce, but then it’s not as if they consult me on these questions of high policy.

    1. “I’m not sure how designating which (if any) judges can preside over weddings interferes with interstate commerce”

      It keeps judges (or whoever) from crossing state lines (that’s the interstate part) to officiate weddings. Officiants at weddings are commonly paid to do so (that’s the commerce part).

  15. To sum up, this is a truly stupid action that accomplishes nothing, in response to a largely stupid action that largely would have accomplished nothing. (How often would people who wished to be married in NY have brought in a federal judge from 4 states over to officiate? Well, those people are put out, because they’ll have to either go get married outside of NY, or select another officiant. Big whoop.

    Leave it up to me, and I’d make becoming an officiant open to any adult who sits though the training video, available for free at the courthouse, that explains what the expectations of the officiant are and how to meet them, plus I’d warn the happy couple that if their officiant screws up the paperwork it can be held against them, so select an officiant with care.

    This would include people nominated to the federal bench by Mr. Trump. Hell, it would apply to each and every one of the Mr. Trumps, (except for Barron until he gets old enough.)

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