Charge: Ban on Sanctioning Same-Sex Marriage Violates Religious Freedom

by Stephen H. Miller on April 30, 2014

The United Church of Christ in North Carolina is suing to overturn that state’s ban on same-sex marriage.

Specifically, the Tar Heel state outlaws clergy performing same-sex marriages (which, in any event, are not recognized by the state):

As part of the state ban, it is a Class 1 misdemeanor for a minister to perform a marriage ceremony for a couple that hasn’t obtained a civil marriage license. In addition, the law allows anyone to sue the minister who performs a marriage ceremony without a license.

The law certainly seems to infringe on the rights of religious denominations and their clergy to perform rituals of their choosing, although whether that argument will led the courts to overturn the ban on state recognition of these marriages is less certain. Still, it’s an interesting development.

{ 22 comments }

Clayton April 30, 2014 at 2:14 pm

Religious freedom means freedom for all religions–not just the ones which have legislative approval.

Tom Jefferson III May 3, 2014 at 11:07 am

I suspect that the court will probably — in this case — say that it is unconstitutional to assign criminal/civil punishment against churches that want to hold same-sex marriages. I am not sure if the court would also make the jump to marriage equality.

Lori Heine April 30, 2014 at 3:09 pm

Since the 2012 elections, the social right has been in Aschluss mode. This is a full-throttle, deliberate assault. There’s an urgent, almost hysterical edge to it.

Thus Duck Dynasty, thus Arizona SB 1062, thus “religious freedom” in general being redefined to mean religious freedom for Christian conservatives only, and of an anti-gay stripe in particular.

This is what frustrates me about sites like IGF. And Gay Patriot? Absolutely hopeless. Instead of jumping every time the social right jerks their strings, they need to THINK. Wake up and take a look at what is going on.

What’s happening in North Carolina is definitely a wake-up call. And Christians in the religious center need to decide whether they want to join the right wing in a race to the bottom or stand up for their faith.

craig123 April 30, 2014 at 3:30 pm

I hardly think the ad hoc ramblings of the “Duck Dynasty” guy were part of a right-wing “Aschluss.” Do you even listen to yourself?

Lori Heine April 30, 2014 at 3:40 pm

Yes, Craig 123, I most certainly do “listen to myself.” As a gay Christian who regularly has to tangle with these people and interact with their victims, I also have years of experience actually dealing with what I’m talking about.

It involves substantially more than simply picking an alias and trolling on blogs to perpetuate what I’ve heard in some bubble.

“Craig123,” do you really ever listen to YOURSELF?

The right wing uses the “ad hoc ramblings” of anybody who might suit its purposes by moving the public. Be it Duke Duck, be it Cliven Bundy, be it whoever.

They did it yesterday, they’ll do it tomorrow and they’ll do it forever.

Tom Scharbach April 30, 2014 at 4:40 pm

Although I have seen some commentary to the effect that North Carolina is unique in criminalizing unlawful solemnization of marriage, I don’t believe that is correct. While I have not done a 50-state survey (and don’t intend to), statutes imposing criminal sanctions on an officiant who solemnizes a marriage in violation of the state’s marriage laws seem standard. A few examples from the Midwest:

ILLINOIS
750 ILCS 5/215 from Ch. 40, par. 215
Sec. 215. Penalty. Unless otherwise provided by law, any person who violates any provision of Part II of this Act is guilty of a Class B misdemeanor.

IOWA
Iowa Code – Title XV: Judicial Branch and Judicial Procedures – Subtitle 1: Domestic Relations – Chapter 595: Marriage
If a marriage is solemnized without procuring a license, the parties married, and all persons aiding them, are guilty of a simple misdemeanor.

INDIANA
Indiana Code – Title 31: Family Law and Juvenile Law – Article 11: Marriage – Chapter 11: Offenses
A person who:
(1) is authorized to solemnize marriages by IC 31-11-6; and
(2) solemnizes a marriage in violation of this article;
commits a Class C infraction.

MICHIGAN
551.106 Person officiating at marriage; violation of act, misdemeanor, penalty.
Sec. 6.
Any clergyman or magistrate who shall join together in marriage parties who have not delivered to him a properly issued license, as provided for in this act, or who shall violate any of the provisions of this act, shall be adjudged guilty of a misdemeanor, and shall be punished by a fine of 100 dollars, or in default of payment thereof, by imprisonment in the county jail for a term of 90 days.

MINNESOTA
Minnesota Statutes – Chapter 517: Marriage
A person authorized by law to solemnize marriages who knowingly solemnizes a marriage contrary to the provisions of this chapter, or knowing of any legal impediment to the proposed marriage, or who willfully makes a false certificate of any marriage or pretended marriage is guilty of a misdemeanor.

WISCONSIN
765.30  Penalties.
(3) The following shall be fined not less than $100 nor more than $500, or imprisoned not more than 6 months, or both:
(a) Penalty for unlawful solemnization of marriage. Any officiating person who solemnizes a marriage unless the contracting parties have first obtained a proper marriage license as heretofore provided.

I would, in fact, be surprised if any state did not provide a criminal penalty for violating the state’s marriage laws.

Like Houndentenor, I’ve wondered when religious bodies performing same-sex religious marriages would step up to the plate and bring a lawsuit based on “free exercise”.

I think that the battle over North Carolina’s recent anti-marriage amendment may have triggered the lawsuit, because the amendment’s infringement upon “free exercise” was part of the campaign against the amendment.

My guess is that we’ll see more cases brought in the next few months.

Tom Scharbach April 30, 2014 at 4:43 pm

Russell Moore, President of the Ethics and Religious Liberty Commission of the Southern Baptist Church: “I’m not sure if this is a religious freedom claim or a publicity stunt. “This isn’t the institutionalization of one particular religious viewpoint, but an idea that virtually every civilization has defined as being between one man and one woman. Religious liberty is something different. It’s when there is an infringement that happens on people’s right to dissent to same-sex marriages. We are concerned with people being forced to participate in those ceremonies, which we see with cases of florists, photographers and others across the country.

I don’t know whether to respond “Aargh!” or “Huh?”

Tom Scharbach April 30, 2014 at 4:46 pm

BTW, if anyone wants to take a look at the actual complaint filed in court, it is very interesting.

Houndentenor April 30, 2014 at 5:30 pm

This is long overdue. The arguments against gay rights and gay marriage in particular are entirely religious. Therefore one type of religious believer has been allowed to impose their religious beliefs on everyone else whether they agree with them or not, including other branches of the same religion. This lawsuit is long overdue in my opinion. There’s no reason that Evangelicals and Catholics should be allowed to prohibit Unitarians and UCC and other churches from performing weddings, and in this case simply from performing a ceremony. What’s most hypocritical about this is that the same churches who push this rubbish legislation are constantly claiming that the government is going to fine churches for what they say and do in their churches. Interesting that in spite of thinking that would be terrible, they just big fat went out and did that to OTHER churches.

Tom Scharbach April 30, 2014 at 5:47 pm

A few of the more thoughtful among conservative Christians are waking up to the implications of the “religious freedom for me, but not for thee” position.

According to news reports, Albert Mohler, President of the Southern Baptist Theological Seminary, described North Carolina’s ban as “dubious and dangerous” and remarked that the UCC lawsuit is “very convincing.” He went on to say: “It puts those of us who advocate both for marriage as the union of a man and a woman and for religious liberty, including the liberty of Christians to hold fast to a Christian and biblical understanding of marriage, in a very difficult position. Even as we advocate for religious liberty, we have to understand that the guarantee of religious liberty means the freedom of heretics to teach heresy. If we deny religious liberty for others, very soon others will deny religious liberty to us. That’s fair warning and this case bears close attention.

Houndentenor April 30, 2014 at 6:32 pm

I’m always amused by the term “Biblical marriage”. I’ve read the entire Bible (all of it twice, other parts many more times). For most of it the men all seem to have at least two wives. I don’t know how then we are able to claim that the SBC’s version of what marriage should be as “Biblical” since the Bible doesn’t actually ban polygamy (at least for men having multiple wives). Claims that it was tolerated but not condoned don’t correspond to anything in the text. Other than a single mention of deacons only being able to have one wife in one of the Epistles, it’s a topic not really covered. Calling it Biblical marriage is just an attempt to make a doctrine sound as if it has more authority than it really does. As usual, of course, it shows that most of these Christians haven’t actually read their Bible, at least not all of it.

Lori Heine April 30, 2014 at 6:56 pm

Heretics teaching heresy! Lions, tigers and bears!

This will, no doubt, lead to more calls for a religious right Taliban that can crack down on said “heresy” in the name of “purity.”

They’ll think of something else to call it, of course. Something suitably American and apple-pie-ish sounding. But that is exactly what it will be.

Tom Scharbach April 30, 2014 at 7:13 pm

Christians have been flinging “heretic” and “apostate” at each other for so long I can’t keep track. What Christians do to each other is their own business.

What interests me, and what I find hopeful, perhaps, is that Mohler, who has been right up there with the “best” of them in denouncing gays and lesbians, seems to have heard the “wake up call” you commented about in another thread: “If we deny religious liberty for others, very soon others will deny religious liberty to us. That’s fair warning and this case bears close attention.

So far, we’ve heard from two frequent SBC “spokesmen”, Mohler and Moore, who seem to be on different pages with respect to the lawsuit, Moore doing the usual “religious freedom for me but not for thee” and Mohler at least pausing to think about it.

We haven’t yet heard from Brian Brown, Bryan Fischer or Tony Perkins, who head up the most prominent of the anti-gay industry’s attack groups. If any of them follow Mohler’s lead, this could signal a significant shift in approach.

I think that the slow reaction is an indication, as Mohler noted, that this lawsuit puts religious conservatives ” in a very difficult position”, which is a polite way of saying “between a rock and a hard place”. We are just going to have to wait and see what develops.

Houndentenor April 30, 2014 at 7:57 pm

It took the SBC over 150 years to admit they’d been wrong about slavery and even that only happened because their missionaries in Africa were being confronted over that issue. Of course that’s fast compared to how long it took the Catholic Church to admit they’d been wrong in dealing with Galileo. In other words, I don’t have time to wait for Baptists to admit they are wrong.

Tom Scharbach May 1, 2014 at 7:54 am

In other words, I don’t have time to wait for Baptists to admit they are wrong

I don’t think we’ll see a theological change. I wouldn’t expect it. The SBC is entitled to believe what it believes. That’s the essence of religious freedom.

What I’m suggesting is different.

We are now down to religion as a justification for marriage inequality. The religion-neutral arguments have been tried and found wanting.

In that context, the UCC case confronts the legal question of whether the law can enshrine the belief system of one religion into law and impose it on other religions. That is a significantly different question than “equal means equal”, although, of course, it is related. The UCC case is, as Lori put it, “a wake up call” for conservative Christians who blithely assumed that they could enshrine their belief system into law.

I think that Mohler has heard the wake up call, and caught on to the idea that if one religion can, under the Constitution, impose its religious beliefs as law, then there is nothing to stop another religion from doing the same thing.

That’s why he’s saying “If we deny religious liberty for others, very soon others will deny religious liberty to us. That’s fair warning and this case bears close attention.

Mohler says that the UCC case puts religious conservatives in a “difficult position”. You bet it does. If the courts hold that religious freedom is not applicable to the UCC because marriage laws are laws of general application, what happens to religious conservative claims that bakers, florists and photographers should be granted religious freedom to refuse to obey public accommodations laws?

Religious conservatives have a decision to make, and if they want to make a case for their own legal position with respect to bakers, florists and photographers, then they had better not fight the UCC case on religious freedom grounds. That’s the rock and the hard place.

I have no clue how this is all going to shake out. But I think that the UCC case is credible enough to shake the tree a bit.

Jorge April 30, 2014 at 9:57 pm

Yeah, when you take the gay couple angle out, I’ve heard a couple of stories of priests who suddenly announced there would be no wedding because a divorce wasn’t legally finalized, or other such mishaps. The law barring state-sanctioned priests from solemnizing a marriage without receiving a valid marriage licence probably started innocently enough, although frankly it’s an area I do not want to wade into. Just like the lawsuit agains Texas’s anti-sodomy law presented severak ways to overturn it, there may well be a way to preserve the law without barring priests from performing gay marriages.

Frankly I do not like the idea that the only clergy who are permitted under the law to solemnize gay marriages are people who are consider apostates by the state–that is, those priests who are not authorized to perform marriages at all… oh, dear, I think this argument hurts more than it helps.

Because the state assumes its own authority to define what is and is not a marriage, I wonder if the state can make as a condition of granting its stamp of approval an affirmation that the clergyperson will not say a gay marriage is a marriage? This is not simply a free speech or freedom of religion issue. The state-sanctioned clergyperson is an officer of the state. There may be some ability to restrict the church’s freedom of expression and freedom of religion when such activities may mispresent, or be interpreted to misrepresent, the laws, findings, and policies of the state of North Carolina. The state gets marriage. The church gets marriage-lite.

How’s that for trolly?

Mike in Houston May 1, 2014 at 11:32 am

To my fellow commentariat — here’s the latest news from Houston.

At yesterday’s Council hearing on the Houston Equal Rights Ordinance (#HERO #HOUequality for those that follow on twitter), there were 49 speakers for and 19 speakers against…

And of course those “against” all started out talking about how they were against discrimination and then started sounding like motorboats (but, but, but, but, but)… and the religious crazies were out in full force as well.

Fortunately, we had several religious leaders on our side that spoke as well — including a Pentacostal pastor!

For the latest news: https://www.facebook.com/notes/out-equal-houston/houston-equal-rights-ordinance-update-512014/766575973375095

Next week will likely be just as contentious as the other side really gears up. Unfortunately for them, the power players in Houston (Greater Houston Partnership, Houston Sports Authority, etc.) have all endorsed the ordinance. Equally unfortunate, the email blasts about “Predator Protection Act” have turned off even stalwart Republicans in and around City Hall.

Tom Jefferson III May 1, 2014 at 1:44 pm

It is interesting how some members of “the right” — scream about the necessity of protecting religious liberty, and then they seem to be screaming a much different tune, when it is not their particular religious viewpoint in question.

Not all people of faith oppose gay marriage. In fact quite a number of Christian and Jewish sects support gay marriage among their members.

Lori Heine May 2, 2014 at 1:59 pm

Another much-welcome byproduct of the UCC’s lawsuit is that the news coverage will call widespread public attention to that. As you say, there are a number of sects, both Christian and Jewish, that do support gay marriage. Many celebrate same-sex unions.

For years, the religious right wing has gotten away with lying (at least by omission) and putting forth the impression that ALL churches and synagogues agreed with them on gay issues. Much of the supposedly-secular media has carried water for the anti-gay side because they’ve been complicit in this lie by omission.

Now there’s a bright-and-shiny story for the media to cover, and the ‘phobes are scrambling to spin it. That they would lie and say stupid things, exposing how hollow their argument is, was inevitable. But the lie by omission has been dragged, kicking and screaming, out into the spotlight.

Houndentenor May 2, 2014 at 3:45 pm

It might help if at some point any of the mainstream protestant denominations would demand equal time when one of these fundamentalist leaders is on a news show talking as if they represented all Christians. I find it hard to believe that the Episcopal, Lutheran, Methodist and Presbyterian denominations don’t have a PR person who could at least attempt to make that happen. I find a lot of protests from people in those churches pretty weak since they seem to always come in the form of apologies to gay people (and others) rather than confrontations with the religious right or advocating on our behalf. It is indeed a lie of omission but one that has happened with the full cooperation of more mainstream and liberal Christian denominations.

Lori Heine May 2, 2014 at 4:01 pm

I quite agree with that. I make myself a constant pain in the butt by saying that very thing constantly. I intend to go right on saying it.

I get a lot of squirms and feeble smiles. I tell them making nice is getting us nowhere.

Episcopal churches are currently very concerned about why they’re hemorrhaging younger members. Duh.

Jorge May 1, 2014 at 10:00 pm

Equally unfortunate, the email blasts about “Predator Protection Act” have turned off even stalwart Republicans in and around City Hall.

Wait, what?

from texasleftist.com: “they’ve renamed the planned NDO the ‘Sexual Predator Protection Act’…” ‘They’ being Steven Hotze, President of the Conservative Republicans of Texas.

Ummm

I expected to learn of such filth in the near future, but I was not expecting it to happen so far away.

Wasn’t there an interesting question along those lines you said you would update us about? In the Bad for the Goose blog post, you said you’re ready to address the misinformation crowd. Let us see the results now that I’ve caught my breath.

texasleftist says: “So we are clear, here’s some myth-busting from the American Psychological Association…

1.) Sexual orientation is NOT a choice.

2) LGBT people are NOT child molesters or sexual deviants
3) Being LGBT is NOT a disease of any kind. We all have a sexual orientation and a gender identity. It is something that you are born with!!

And many more from years of extensive research from the APA. Remember the meeting at City Hall is tomorrow 2pm, with a rally for equality starting at 1pm. If you can attend, please do so and help create a better Houston for us all. There’s also still time to call and email your City Council representatives. This is for real folks!!” Emphasis mine: I gather that Adult Male Hotze’s (I will not give him an honorific… I like how that works out) call to email blast the council members was answered by more opponents than supporters.

And the APA link is pretty direct without a hint of overreach, the writing is about as perfect as you can get.

Now, we recently had a situation in which the NBA essentially fired someone for making racist remarks. Here we have bigoted remarks but Adult Male Hotze that present something approaching a clear and present danger for LGBT people. The difference in our strength is clear.

I suppose the tactics are more Texas’s call than mine, Mike, but I want to know what the stalwart Republicans who have been turned off are saying. It will be a shield, a guard, a badge of protection to wear should the decision be make to attack Adult Male Hotze. The permission to do what must be done.

Perhaps the best way not to let this become a distraction without ignoring it would be for me to email GOProud. They give me so much junk mail, I may as well call in a favor. Oh, and I’ll see if I can email texasleftist, too.

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