Suit Against NC Marriage Law Has Activists Excited. Should They Be?
Mollie Hemingway
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Same-sex marriage advocates are super excited about a new federal lawsuit filed against North Carolina this week by the United Church of Christ and a coalition of clergy members. Here’s the Associated Press:

CHARLOTTE, N.C. — A coalition of clergy members is challenging North Carolina’s constitutional ban on gay marriage with an unusual approach in a federal lawsuit: They say it violates their religious freedom. The clergy members said in the lawsuit filed Monday that they’d like to perform same-sex marriage ceremonies in their congregations, but they can’t because of the “unjust law.”

Indeed, if North Carolina law prevents UCC clergy members from performing religious rites in their congregations, that would be an intolerable injustice. But neither the lawsuit nor the many media reports trumpeting the lawsuit managed to get to the part where they explain how North Carolina law does that.

North Carolina defines marriage as a union of one man and one woman. State law also says that no one authorized to solemnize the civil marriage of a couple may do so without the couple having a valid license. States vary on these requirements but this is a not-uncommon state rule designed, ostensibly, to prevent fraud. Anywho, anyone authorized to perform a marriage under the laws of the state who does so without following licensing rules can be fined and guilty of a misdemeanor. The denomination claims that this means if one of their ministers “conducts any marriage ceremony between same-sex couples, he or she is guilty of a crime.” Except that they don’t explain where, exactly, they get this idea. Which makes the claim difficult to analyze.

To be sure, if North Carolina law were making it illegal for a clergy member to perform what he or she considers to be a marriage ceremony, the violation of religious liberty would be serious cause for concern. In fact, some have worried that Indiana marriage laws could be interpreted in such a fashion as to criminalize religious ceremonies.

But it looks like the statute under question in North Carolina is simply about making authorized officiants follow licensing rules for what the state considers valid marriages. There’s no indication that it actually is illegal to have a ceremony saying two men or two women are married. And, in fact, plaintiffs don’t point to anything the state has done to punish officiants at same-sex ceremonies. For some reason, reporters didn’t bother to ask for substantiation on these points. (See the New York Times, Religion News Service and BuzzFeed.)

Other plaintiffs include ministers in the Unitarian Universalist Association of Congregations, which has an active polyamory community. Maybe too active. Polyamory isn’t mentioned in this suit but if these ministers were not allowed freely to perform a religious rite honoring a polyamorous commitment among congregants, that would also be a violation of their religious freedom. But does the law in fact make it a misdemeanor for Unitarian Universalists to bless polyamorous commitment ceremonies or for United Church of Christ ministers to solemnize same-sex commitment ceremonies? Unless it does so, the plaintiffs’ claim of an attack on religious liberty might be difficult to prove.

Still, there may be religious liberty concerns embedded in the statute, which says “[n]o minister, officer, or any other person authorized to solemnize a marriage under the laws of this State shall perform a ceremony of marriage between a man and woman” without following licensing procedures. It’s pretty clear that North Carolina is only interested in licensing for marriage, as defined as the union of one man and one woman. You can see it right there where it says “perform a ceremony of marriage between a man and woman.”

What if one of these man-woman couples doesn’t seek civil marriage but simply a religious commitment? Shouldn’t ministers be allowed to perform that religious rite without penalty? Can authorized agents of the state “turn off” their powers so to speak so that they might  be able to solemnize such a male-female union in a religious sense but not a civil one?

Regardless of whether marriage laws should be changed, advocates are right to be concerned about protecting religious liberty. If North Carolina law does prevent officials from religious blessings, commitments or other rites, that would be a serious problem. It doesn’t matter what one’s personal views on marriage law are, Americans should always work consistently to preserve the religious liberty of those who agree and disagree.

I should note that Mark Joseph Stern published the press release version of this story in Slate with this as its focus:

I’m not certain why Ross DouthatRamesh PonnuruMollie Hemingway, and other vociferous conservative defenders of religious liberty aren’t vocally outraged about this fact. Nor am I certain why, if religious freedom is truly one of the most cherished values of American conservatism, the religious right wasn’t incensed when Unitarian ministers in New York had to risk arrest while performing commitment ceremonies under a similar statute in 2004. Surely a vision of religious liberty that would allow a storeowner to turn away gays at the door would encompass the basic principle of allowing houses of worship to honor lifelong commitments they deem worthy of solemnization in the eyes of God. Actually, there’s an obvious reasons why conservatives aren’t clamoring to endorse the UCC’s lawsuit: The battle cry of “religious liberty” is only valuable to the American right insofar as it protects the right’s own values—like animus toward gay people or rejection of reproductive rights.

So terribly sorry that Stern’s caricature isn’t holding up but Ramesh Ponnuru has written rather funny retorts here and here. Ponnuru is thankful, as am I, to be acknowledged as a vociferous defender of religious liberty. Ponnuru explains that he was not “vocally outraged” about this issue because a) he had never heard about it prior to this lawsuit (ditto) and b) he’s not entirely sure there is a religious liberty concern here (ditto). I don’t know that much about reporting, but I know enough to know that you generally should not claim to know what’s in the hearts of other people and if you do make that claim, maybe don’t do it without asking for comment?

It turns out that I absolutely do argue that religious liberty is meaningless if it doesn’t encompass everyone. If UCC ministers aren’t free to practice their religion, that is just as wrong as if a Buddhist adherent can’t practice hers. If Pagans can’t practice their religion without government bullying, that’s just as wrong as if Methodists can’t. My mom fled the UCC in the 1960s (along with, eventually, pretty much everyone else who’d ever been UCC) and even she thinks that the UCC leadership should be allowed to continue doing whatever they’re doing to that once-mainline church body.

If, in fact, North Carolina is punishing UCC ministers for religious rites, you bet your okole I’ll be screaming to the hills about it. Because a government strong enough to tell UCC ministers it can’t perform a religious rite is a government strong enough to tell Lutherans we can’t have the sacraments. This is not brain surgery. This is how religious liberty works. (In fact, government restricting my Lutheran forebears on administration of the sacraments was precisely how we ended up in this country.) This is why everyone should fight for the religious liberty of others all the time, no matter if they personally agree with the viewpoint under attack. It truly works well for everyone.

So while I’ve always been consistent on religious liberty, I’m elated to welcome newcomers such as Mark Joseph Stern to the fight, along with everyone else who is beginning to come to grips with the conflicts that can be present between religious liberty and marriage laws.

The UCC and other plaintiffs argue that North Carolina is stigmatizing them “and their religious beliefs,” telling them “that their religious views are invalid.” They may not have the strongest case, but we’ll see how this goes. Either way, if a law recognizing marriage as a union of one man and one woman accomplishes that, what might be said about actual government action taken against bakers, florists and photographers declining to take part in marriage ceremonies?

Photo "North Carolina, USA" by Andy Callahan
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