Michael,
Let me take a stab at this. To the extent the lawsuit is based on the
allegation that the North Carolina statute "makes it a misdemeanor for clergy
to perform a same-sex marriage ceremony", I think the plaintiffs are going to
have trouble making that argument based on the relevant statutory language.
Plaintiffs quote to the relevant statutes (N.C.G.S. 51-6 and 51-7) at paragraph
91 of their complaint (and I've included links to the statutes below).
51-6 states that no person authorized to perform a marriage "shall perform a
ceremony of marriage between a man and woman . . . until there is delivered to
that person a license for the marriage of said persons."
http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/BySection/Chapter_51/GS_51-6.html
Given the underlined language, Section 51-6 therefore only applies on its face
to a ceremony between an opposite sex couple.
51-7 then states that it is a misdemeanor for "[e]very minister, officer or any
other person authorized to solemnize a marriage under the laws of this State,
who marries any couple without a license being first delivered to that person,
as required by law."
http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/BySection/Chapter_51/GS_51-7.html
The "any couple" language in 51-7 clearly refers back to "a man and woman"
language in 51-6, particularly since that is the only situation in which the
law requires a license to first be presented to the particular clergy member
performing the ceremony.
Said another way, the North Carolina statutes as written simply do not apply on
their face to the situation in which a religious clergy member performed a
"marriage ceremony" involving anyone other than "a man and woman". Thus, it
appears based on the statutory language that clergy members would be free to
perform same-sex ceremonies without fear of any prosecution, but the result of
those ceremonies would simply not be recognized as a valid "marriage" by the
State of North Carolina.
Thus, while Plaintiffs state that they filed the case to "assert their right to
freely perform religious services and ceremonies consistent with their beliefs
and practices" (Complaint para. 53), the referenced statutes on their face
don't prohibit such services or ceremonies.
If my interpretation of the NC statutes is correct, doesn't that mean that
Plaintiffs' claims for free exercise are really not a claim to freely perform
whatever religious services and ceremonies they want (since they can already do
that), but really a claim to force the state to recognize or attribute certain
characteristics to the religious ceremonies that they perform?
The equal protection claim is, of course, subject to a totally different
analysis, but in light of the NC statutory language, it strikes me that the
free exercise claims are pretty weak in this case. They are different than the
free exercise claims in Hobby Lobby which dealt with government mandated
conduct, as opposed to the present case which involves government recognition
of the effect of certain religious ceremonies.
Best regards,
Will
Will Esser --- Ad Majorem Dei Gloriam
Charlotte, North Carolina
********************
"You are anxious and worried about many things.
There is need of only one thing." Luke 10:41-42
********************
From: Michael Peabody <peabody...@gmail.com>
To: religionlaw@lists.ucla.edu
Sent: Tuesday, April 29, 2014 8:14 PM
Subject: United Church of Christ v. North Carolina - same-sex marriage
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/
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