Same-sex marriage, religious freedom and a liberal twist

Same-sex marriage, religious freedom and a liberal twist April 29, 2014

An extremely interesting — and potentially highly important — twist came Monday in the ongoing culture wars over religious liberty.

New York Times religion writer Michael Paulson reports:

In a novel legal attack on a state’s same-sex marriage ban, a liberal Protestant denomination on Monday filed a lawsuit arguing that North Carolina is unconstitutionally restricting religious freedom by barring clergy members from blessing gay and lesbian couples.

The lawsuit, filed in a Federal District Court by the United Church of Christ, is the first such case brought by a national religious denomination challenging a state’s marriage laws. The denomination, which claims nearly one million members nationwide, has supported same-sex marriage since 2005.

“We didn’t bring this lawsuit to make others conform to our beliefs, but to vindicate the right of all faiths to freely exercise their religious practices,” said Donald C. Clark Jr., general counsel of the United Church of Christ.

The denomination argues that a North Carolina law criminalizing the religious solemnization of weddings without a state-issued marriage license violates the First Amendment. Mr. Clark said that North Carolina allows clergy members to bless same-sex couples married in other states, but otherwise bars them from performing “religious blessings and marriage rites” for same-sex couples, and that “if they perform a religious blessing ceremony of a same-sex couple in their church, they are subject to prosecution and civil judgments.”

The relatively brief Times story quotes Evan Wolfson, founder and president of Freedom to Marry, which supports same-sex marriage:

“In their zeal to pile on to denying the freedom to marry, North Carolina officials also put in place a measure that assaulted the religious freedom that they profess to support by penalizing and seeking to chill clergy that have different views,” Mr. Wolfson said. “The extent to which North Carolina went to deny the freedom to marry wound up additionally discriminating on the basis of religion by restricting speech and the ability of clergy to do their jobs.”

The report also quotes a same-sex marriage opponent (the same one used by The Associated Press):

But Tami Fitzgerald, executive director of the North Carolina Values Coalition, which opposes same-sex marriage, derided the legal action as “the lawsuit of the week filed by those who want to impose same-sex marriage on North Carolina.”

“It’s both ironic and sad that an entire religious denomination and its clergy who purport holding to Christian teachings on marriage would look to the courts to justify their errant beliefs,” Ms. Fitzgerald said in a statement. “These individuals are simply revisionists that distort the teaching of Scripture to justify sexual revolution, not marital sanctity.”

Here’s what I find intriguing: If North Carolina can tell clergy that they can’t perform same-sex marriages (regardless of whether the state recognizes them), what’s to prevent states that allow gay weddings from telling clergy that they must perform them? The values coalition source doesn’t seem to answer that direct question.

In a front-page Charlotte Observer story on the lawsuit, religious conservatives also address the rightness/wrongness of same-sex marriage itself:

The state’s 2012 constitutional ban, widely known as “Amendment One,” passed with 61 percent of the vote. The margin of victory was largely driven by social conservatives and conservative Christians. Many of them believe that the Bible reserves marriage for a man and a woman.

One of those is the Rev. Clint Pressley, pastor of Hickory Grove Baptist Church, one of the city’s largest congregations.

“It boils down to a view on the authority of Scripture,” he said Monday. “The denominations listed have abandoned almost 2,000 years of Christian Orthodoxy. It’s not surprising.”

The Catholic Diocese of Charlotte, which actively campaigned for passage of Amendment One, also weighed in.

“This lawsuit does not change the fact that God created men and women differently,” said spokesman David Hains. “The fruits of that difference are marriage and the continuance of the human race through children.”

But again, those comments don’t appear to answer the religious freedom question raised.

However, I noticed this tweet by James A. Smith Sr., chief spokesman for the Southern Baptist Theological Seminary in Louisville, Ky.:

On that podcast, Mohler, the conservative seminary’s president, suggests:

It appears that those who have brought this lawsuit may well have a very convincing argument. And furthermore, it puts all of us who wish to advocate for and to protect religious liberty in a significantly sensitive and difficult place. Because even those of us that believe that the main thrust of the amendment is not only right but necessary have to wonder if the particular language in the North Carolina amendment does not actually pose a threat to the religious liberty not only of the clergy of the United Church of Christ who want to perform same-sex marriages, but also of the ministers of any other faith, including evangelical Christianity, who at some point and in some places where same-sex marriage is legal might be addressed with exactly the opposite mandate.


Stay tuned.

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33 responses to “Same-sex marriage, religious freedom and a liberal twist”

  1. I don’t say this often, but Mohler is clearly correct. If all the UCC wants to do is hold a ceremony within their own congregation without a state marriage license, then there is no good reason for the state to tell them that they can’t.

    What is not clear from the news articles is how recent is the directive in question. Information is given about Amendment One as if the directive came from that initiative, but nowhere is the line directly drawn. Could the UCC have performed a non-state-sanctioned same-sex marriage before the passage of Amendment One?

    • “Could the UCC have performed a non-state-sanctioned same-sex marriage before the passage of Amendment One?”

      The answer is: “yes, before and after passage of the Amendment”. Article 14, Section 6 of the NC Constitution reads: “Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State. This section does not prohibit a private party from entering into contracts with another private party; nor does this section prohibit courts from adjudicating the rights of private parties pursuant to such contracts.”

      So this is not a religious liberty issue, despite what the litigants claim. The UCC was able and continues to be able to “marry” or “bless” whomever they wish. The NC government has decided, however, that they won’t legally recognize those marriages or blessings.

      This is a disingenuous lawsuit.

      • The end object, I fear, is exactly what the Baptist minister suggested.
        The minister/congregation/church will have no more religious freedom to decline “business” than the baker or the photographer.

        The object of all this activity is not to be permitted to have a same sex marriage, but to shove the practice down the throats of those unwilling to swallow it, and demand that they provide a ticker tape parade for it!

        “American civil religion” [and Islam] will be approved; everything else will be pushed into the closet.

        In the interests of “fairness”, of course.

      • But that section of the constitution deals with contracts. A blessing or a solemnification isn’t a contract in any conventional sense.

        I need to read that law a bit closer, but the plaintiffs would appear to have a point.

  2. If you read the legislation, you will find that it only affects marriages reported to the state. So, if the UCC wants to perform a same-sex “marriage” in NC, it simply has to tell the couple that the marriage is not legally binding in NC (or any other state) and would have to be done in a different state to legally binding in that state. (That is because there is no marriage license and marriage licenses are only valid in the state in which they are issued.)

  3. It’s time to separate “blessing a marriage” and the legal consequences of marriage.
    I remember asking a Jesuit cousin if an elderly couple didn’t want to lose retirement benefits, could the church marry them religiously and not report it to the government. He said that can’t be done b/c of strings attached to having religious ceremonies recognized legally. At least it used to be that if you are allowed to perform marriages recognized by the state, that you can’t do ones that aren’t reported to the state to avoid unwanted state consequences.
    The solution is to quit making clergy agents of the state. As a side effect, this will end the mail order business of being ordained only to officiate at weddings. LOL I have a niece and a nephew who got those credentials to do weddings for friends. It appears that they can’t “bless” weddings done without licenses, either.

    • Clarification: I should have been clearer. It’s time to have a 2 step process. Legal marriage with all its consequences and a “blessing”/religious marriage that follows, if wanted by the parties. Much cleaner and clearer that way. This has been the pattern all around the world – why not here?

  4. I find it odd that you would ask “…what’s to prevent states that allow gay weddings from telling clergy that they must perform them? ” In states where same marriage is legal, no religion has even been (or ever will) be “forced” to perform any marriage ceremony if it is in contradiction to that religions particular beliefs. Catholics can not be compelled to marry Jews. Baptists are not compelled to marry Muslims, etc. North Carolina went too far in the sense that it not only curtails certain religions from performing ceremonies they find licit, but then punishes them. But, like many state constitutional amendments regarding same sex marriage, this will probably be struck down by the courts. Civil marriage is very different from religious marriage. One does not need to have a religious ceremony in order to get a marriage license. It will be interesting to see how NC defends this particular punitive portion of the law, as religious liberty can not be a serious defense in this case.

    • Can you find where in the law these non-marriage religious ceremonies are prohibited? The text of Amendment One does not seem to mention them. Perhaps there was subsequent legislation, but I cannot find it; and then the complaint of the UCC would be about that legislation and not the Amendment itself.
      As for no religion has been or ever will be forced to act against its beliefs, things change. Let’s see what SCOTUS says about the contraception mandate. Perhaps a religion’s views can be seen as impinging the religious freedom of adherents who want the religion to change its views.

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      • A priest is already prohibited from performing a sacramental marriage if the state has not issued a license. Therefore, why would this be an issue? If they are not allowed to marry without a license, why should a same sex couple be allowed to get married in church without a license. A priest in Chicago has been calling for lawyers to make this same argument to get the state out of marriage. The state has contract law, therefore, they don’t really have much reason to get involved with marriages. Let people get married in the churches, and let the state deal with whatever contracts people want to contrive.

        • Can a church garnish someone’s wages for child support? Should it be able to? Marriage has many dimensions and is many things, but one very big thing that it is, is a contract with legal, civil ramifications in which the state has a vested interest and a responsibility to participate. Just ask anyone who’s gotten a divorce. By marrying, the couple has rights and duties with respect to each other and their children even after a divorce, and churches in secular society generally lack the authority to protect such rights and enforce those those duties. If marriage is solely a religious affair, what about non-believers or people not part of a particular religion? The state can certainly overstep its bounds, however. One thing the state cannot really do is make reality to be a certain way simply by defining it so except to the extent its definitions reflect rather than attempt to create reality – the state cannot “define” what “dog” means by legislation or a court decision saying that “dog” now includes pets that meow, or if it did, reality would still demand some way of distinguishing pets that bark from those that meow. The state or even various religions redefining “marriage” could be argued to be similar.

  5. The amendment itself does not appear to restrict any sort of blessing by any church, as long as that blessing is not intended to be a marriage ceremony. As others have noted, an agent authorized by the state to officiate at marriages cannot perform a marriage ceremony in that state for an unlicensed couple – regardless of who that couple is – without going afoul of the law, or at least not without violating the terms of being able to perform state-recognized marriages.
    The article could have probed exactly what the UCC is trying to do. We are left assuming that they basically want to overturn the entire amendment rather than ensure they can perform non-marriage religious blessings on whomever they please. But if it is an issue of religious freedom that a religion that advocates same-sex marriage is being restricted in terms of free exercise by not being permitted to perform them, and that argument is valid, what does that say about, for instance, Mormon sects and other religions that advocate polygamy, or religions that permit men to marry very young girls below the legal age of consent? Does religious freedom mean the state’s interest is really limited to recording marriages and adjudicating divorces? Does not the UCC need to show, legally speaking, how their views constitute a religion of “Christ” (the name being part of theirs) to establish that their religious exercises are bonafide and not a sham? Does one religion’s refusal to perform same-sex marriages constitute an infringement of the religious freedom of those who believe that religion should change its views? Basically, is the UCC claim really valid, and if so, where does it end?

    • Courts don’t rule on the truth of religious doctrine. Not in the U.S., at least. (See United States v. Ballard.) At most, courts sometimes evaluate how sincere a belief is.

      If you think the UCC is not sincere in their religious beliefs, I suppose you might submit an amicus brief outlining your evidence.

  6. Bobby, I think your question of “If North Carolina can tell clergy that they can’t perform same-sex marriages (regardless of whether the state recognizes them), what’s to prevent states that allow gay weddings from telling clergy that they must perform them?” is a good one, and it highlights why, when there are competing religious beliefs and interests, North Carolina (and other states) should not be prohibiting religious practice (or mandating it)! Both requiring and prohibiting clergy to perform marriage ceremonies would be impinging upon religious freedom.

    What I find almost even more troubling, is Clint Pressley stating that Amendment One comes down to “a view on the authority of Scripture.” If that is true, it should be struck down right now, as State law should never come down to “a view on the authority of Scripture.”

    But here is a question. Doesn’t your headline, with “a liberal twist” at the end of it, point to some possible bias? I don’t know many folks who apply the term “liberal” to themselves as a label. The preferred term is progressive, since the word liberal is often used as a pejorative.

  7. I read the the plaintiff’s complaint. They are complaining about the state law that says anyone who “solemnizes” a wedding for which there is no valid license is guilty of whatever.

    IANAL, but I believe “solemnizing” (despite how it sounds) is a civil term (so JPs “solemnize” weddings as well).

    So despite how the UCC and the press is trying to spin this, I don’t think the NC law prohibits a religious organization from performing a religious wedding and viewing the participants as married in the eyes of that religious organization. They just can’t invoke the civil power of the State and claim that the parties are legally married.

    So I’m with Kodos about this disingenuousness of this lawsuit.

    • I kept reading that this lawsuit is challenging a law that makes it a misdemeanor for pastors or rabbis to marry gay couples (or, I suppose, any group of people who wish to be married in an arrangement contrary to NC law). It took me a while but here is the text of the law:

      Ҥ 51-7. Penalty for solemnizing without license.
      Every 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, or after the expiration of such license, or who fails to return such license to the register of deeds within 10 days after any marriage celebrated by virtue thereof, with the certificate appended thereto duly filled up and signed, shall forfeit and pay two hundred dollars ($200.00) to any person who sues therefore, and shall also be guilty of a Class 1 misdemeanor. (R.C., c. 68, ss. 6, 13; 1871-2, c. 193, s. 8; Code, s. 1817; Rev., ss. 2087, 3372; C.S., s. 2499; 1953, c. 638, s. 1; 1967, c. 957, s. 5; 1993, c. 539, s. 415; 1994, Ex. Sess., c. 24, s. 14(c); 2001-62, s. 7.)”

      It seems to me that this law refers to legal marriages — that is, marriages recognized by the state (“under the laws of this State”). This would not, I assume, prevent persons to be blessed or married at church as long as it was understood by the participants that this marriage was not being solemnized “under the laws of this State” and was not legal in the eyes of the State.

      If I were the reporter on this story, I’d find out if any minister or pastor has been arrested or fined for blessing or marrying gay couples. I’d also ask why these pastors and rabbis want the State to recognize the marriages they perform. Isn’t God’s blessing more important than the blessing of the State? “Religious liberty” is about the freedom to practice one’s faith the way one wishes, and I don’t see that this has been prevented in NC.

      So I’m still left with the strong feeling that the litigants, including the UCC, are being disingenuous. No one seems to be preventing them from practicing their religious obligation (as they see it) to marry gay people.

      And I’m also left with the strong feeling that reporters are just going along with the story as its being framed by the litigants, without pressing — as reporters should — some tough legal, philosophical, and religious questions to the litigants of the lawsuit.

      • I’m trying to understand if a duly authorized agent of the state can “turn off” his state powers. Is an off-duty cop who makes an arrest making a “citizen’s” arrest? Can an authorized marriage official who uses an otherwise licit marriage ceremony with an unlicensed couple (or threesome or whatever) “turn off” his official powers simply by saying “this won’t be recognized by the state”? Is not performing a marriage ceremony – irrespective of its religiousity, since in principle a judge or ship’s captain can also do the same thing for nonreligious couples – that is not a legal marriage precisely the kinds of thing the state wants to prevent in regulating marriages by licensing the couple and authorizing officials?

        • That’s a very good question.

          Too bad reporters aren’t asking it.

          I also notice that you’ve framed your question without reference to the gender of the participants in the marriage. So if your hypothesis is correct, the root issue is not about homosexuality, nor the same-sex marriage prohibition in NC law. The REAL issue, then, would be about the freedom of pastors, rabbis, imams, etc. to marry persons as they choose while at the same time remaining a legal representative of the state and whether this is a problematic entanglement of church and state.

          But this is not how the litigants and the press are framing the issue.

          • Let me put it another way:

            The litigants are attacking NC’s same sex marriage ban.

            The litigants are not attacking NC’s requirement that they be agents of the state.


            That’s a great journalistic question to ask.

          • An even bigger issue is the notion of “what the law says” creating justice and ethics – “positive law.” A thing isn’t wrong because it’s against the law; a thing should be against the law because first it is wrong. If law creates justice and ethics, then ANYTHING can be moral and legal, if one can get a law to be passed. Laws need to be based on principles, and I am very interested in getting to the principles.
            So, no it’s not just clergy but also judges and mayors and whoever else is normally deputed to officiate at weddings to perform a wedding that isn’t a wedding. (In NC it’s just clergy and judges, in other states it could be almost anyone.) Not just same-sex couples but anyone. Indeed, it need not be limited to humans. Or living things for that matter. Not just religious – what if a retired atheist judge wanted to solemnize the relationship between an atheist friend and an android? Why would the current law not be an infringement of his religious freedom, just as the UCC claims it is for them?

  8. After all the discussion here and among some friends (including two smart journalists and a smart attorney who read the amendment and statute and came to different understandings) on my Facebook page, it seems clear to me that more reporting and better reporting is needed on this lawsuit.

    If anyone comes across any such stories, by all means, please share a link.

    Thanks for all the comments and feedback!

  9. I don’t have much to add here, but wanted to express my appreciation for the civil (and thoughtful) discourse here in these comments. I’ve found patheos fairly recently, and I must say the comments on many of the posts are a welcome change from what one often sees on other sites.

    I also have to agree that the reporting on this issue has been really bad – I’ve been trying to figure out what the issue is for the last couple of days, without much success (until now – with these helpful comments). It seemed to me that if the question is can UCC ministers marry people w/o licenses in NC the answer is obviously no, since marriage, whatever else it is, is a legal institution which requires a license. So _that_ couldn’t be what’s at issue. If the issue is whether UCC ministers can bless couples then it also seems a no brainer – prohibiting them from doing so is obviously a violation of the first amendment. So _that_ couldn’t be the issue either. But what’s left, other than a claim by the UCC that the state’s ban on certain kinds of marriages is itself a violation of their religious rights? (That also seems silly, since what they have a right to is the religious bit, not the legal bit, and they’ve already got that – or if the legislation is an attempt to take that religious right away, then I guess they are right to sue, but, again, that seems like a no-brainer). (And in response to Julia B. below – I clearly remember the priest who performed my marriage ceremony some years ago telling us that we were legally married, as far as the state was concerned, once the docs were all signed – the religious ceremony itself had no legal weight. So there already is an at least implicit distinction between the legal and religious, even if it’s more obvious in other countries.)

  10. Nothing to do with Amendment One. The statute long precedes the push for sodomitical marriage. In part, the statute reads:

    § 51-6. No 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, or shall declare them to be husband and wife, until there is delivered to that person a license for the marriage of the said persons, signed by the register of deeds of the county in which the marriage license was issued or by a lawful deputy or assistant. There must be at least two witnesses to the marriage ceremony.

    A ceremony that declares two persons without a license to be married in the sight of God, and not under the laws of the State, could not be prosecuted.

    • “under the laws of the State” pertains to the authorization of a person to solemnize a marriage. The officiant at an extra-legal ceremony would have to be someone not qualified under the state to perform the ceremony and yet be qualified by the religion to do so; but such religious ministers who can perform a religiously valid marriage ceremony are also authorized ex officio by the state to solemnize. Therefore, the religious minister perfoming the rite could be prosecuted.

      • Agree that under the laws of the State refers to the officiant.

        Blessing ceremonies have been performed in North Carolina for years by clergy of all stripe. Amendment One does not change the practice.

        There is an interesting discussion of whether or not clergy should stop signing whatever certification a State may require for a wedding to be recognized by the State in last month’s issue of FIRST THINGS.

    • I’m a retired attorney, never licensed in NC, but I’ve seen similar statutes in other states, and I think Ms Hemingway got it right

  11. The UCC is not Christian, in my opinion, but it has the right to define “holy matrimony” as it chooses apart from civil marriage.