Is It Constitutional for New York to Criminalize Clergy's Performing Wedding With No Civil License For Couples?

A Forward article published last week raises the question of the constitutionality of New York's Domestic Relations Law, Sec. 17, which makes it a misdemeanor for any clergy member to "solemnize or presume to solemnize any marriage between any parties without a license being presented ... or with knowledge that either party is legally incompetent to contract matrimony." The article reports on the case of Yehuda Semel, who obtained a Jewish religious divorce from his wife. However their civil divorce proceedings are still pending in the courts.  Nevertheless, Semel has married another woman in a religious ceremony without obtaining a civil marriage license.  Most rabbis oppose performing a religious marriage ceremony where there has not been a civil divorce. Commentators argue, however, that it is a violation of the 1st Amendment for the state to make it illegal for a rabbi to perform a purely religious ceremony. It was not unusual before a 1983 change in the Social Security Law that preserved benefits for widows who remarry, for rabbis to perform a religious ceremony for a couple otherwise eligible to marry but who did not obtain a civil marriage license to avoid the woman's loss of her Social Security benefits. There was a Yiddish phrase for that type of marriage-- stile chupa (a "quiet marriage").