Under North Carolina law, would it be a misdemeanor for clergy to perform a
marriage ceremony that created a marriage valid in the eyes of the
religious denomination but did not purport to create a marriage valid as a
matter of civil law?
If the misdemeanor applied only to a marriage ceremony that purported to
create a marriage valid as a matter of civil law, would the problem
disappear, since a marriage performed without a state certificate
presumably would not purport to create a marriage valid as a matter of
civil law?
*Warning*
*: this message is subject to monitoring by the NSA.*
On Tue, Apr 29, 2014 at 8:14 PM, Michael Peabody <peabody...@gmail.com>wrote:
> Greetings,
>
> Yesterday (4/28) the General Synod of the United Church of Christ ("UCC")
> sued the state of North Carolina in Federal court (link to complaint:
> http://uccfiles.com/pdf/complaint.pdf) claiming that a constitutional
> amendment (Amendment One) prohibiting same-sex marriage is unconstitutional
> under the Free Exercise Clause. They have also sued under a theory of
> expressive association, denial of due process, and denial of equal
> protection.
>
> North Carolina appears to be rather unique in that it potentially (if not
> in practice) makes it a misdemeanor for clergy to perform a same-sex
> marriage ceremony, so in addition to the potential harm to same-sex
> couples, there's a threat of harm to members of the clergy. (Misdemeanor is
> based on the fact that it's illegal to marry a couple without having an
> official certificate, and same-sex couples will never get an official
> certificate, ergo misdemeanor.)
>
> What makes this case particularly interesting is the free exercise
> argument, which seems to be virtually (or at least politically) unbeatable.
> I can imagine a scenario where conservative churches bring their Bibles to
> the debate to argue that their version of the sacrament of marriage is
> correct, while progressive churches do the same thing, and the court is
> asked to decide whether one version of the sacrament is incorrect and shall
> not be practiced under pain of misdemeanor charges for the offending clergy
> member. Or perhaps the court could cover the entire issue with a
> majoritarian overlay and claim that the voter-passed Amendment One trumps
> all competing claims, including free exercise claims.
>
> It reminds me of the California Supreme Court case that ended bans on
> interracial marriage (Perez v. Sharp -
> http://www.stanford.edu/~mrosenfe/Perez_v_Sharp_CA_1948.pdf). In Perez,
> the petitioners argued that the state law violated their free exercise
> rights as Catholics by denying them the right to participate fully in the
> sacraments of their religion. In this case, the UCC can argue that the
> state law violates their free exercise rights by denying same-sex couples
> (and the clergy who want to marry them) the right to participate fully in
> the sacraments of their religion.
>
> Is there any way that NC's Amendment One can survive this litigation?
> What arguments could possibly be used to defeat UCC that aren't completely
> frightening?
>
> Michael Peabody
> Editor
> http://www.ReligiousLiberty.TV
>
>
>
> _______________________________________________
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>
> 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 Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
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.
