UCC Files Religious Liberty Suit in NC

In a news release yesterday, the General Synod of the United Church of Christ announced its lawsuit protesting North Carolina's law prohibiting same-sex marriage, claiming that the state is violating ministers' religious liberty. 

As I (a non-lawyer!) understand it, since it is a crime for ministers to officiate at a marriage without making sure the couple has a marriage license, barring same-sex couples from getting licenses restricts the ministers' freedom of religion. Here's the explanation from the press release: 

In 2012, North Carolina voters approved Amendment One, which limited a domestic legal union to a covenant between a man and woman. Under state laws consistent with Amendment One, it is a Class 1 misdemeanor for a minister to perform a marriage ceremony for a couple that hasn’t obtained a license, and such a license may not be issued to same-gender couples. ...The UCC believes that this prohibition and penalties also apply to a minister performing a religious ceremony not intended to result in a legal marriage.

The UCC has embraced marriage equality since 2005, but of course the UCC doesn't stand alone on this. Plaintiffs in this case include "three UCC ministers, two Unitarian Universalist clergy, one Lutheran pastor, one Baptist minister, and one rabbi," along with the couples they married. A number of Christian denominations and other religious groups now allow same-sex marriage, so the question of religious liberty is an important one.

I would imagine that the crux of the legal issue here is the last sentence of the block quotation above: does the law apply to a religious ceremony that isn't intended as a legal marriage? 

The UCC's Book of Worship includes two marriage rites, one called the "Order for Marriage," and the other "Order for the Blessing of a Civil Marriage." The Order for Marriage makes no mention within the rite of the legal status of the union, though the introduction states that "It is the responsibility of the one presiding at the marriage to understand and conform to the marriage laws in the place where the ceremony is to be held." The blessing of a civil marriage presumes that a civil ceremony has already taken place. 

There is a precedent from New York, where two Unitarian ministers violated state law in marrying 13 lesbian couples in 2004, when they substituted for New Paltz mayor Jason West, who was then under injunction for solemnizing New York's first same-sex marriages the previous week. The mayor faced 19 misdemeanor charges, which were later dropped. The minsters were also charged: Ulster County DA Don Williams said

he was compelled to prosecute Greenleaf and Sangrey because they "publicly proclaimed their intent to perform civil marriages under the authority invested in them by New York State law, rather than performing purely religious ceremonies."

These charges were also dropped.

All in all, I'm not sure the UCC case is going anywhere, at least if the state can claim that the law only applies to marriages recognized by the state, and not to purely religious ceremonies, including church marriages. (Equal protection for the couples involved, or some such principle might apply, but maybe not religious liberty for the ministers.) Of course i could well be completely wrong--I thought the Hobby Lobby case was clearly groundless, too. Any comments from the lawyers hereabouts? 

Lisa Fullam is professor of moral theology at the Jesuit School of Theology at Berkeley. She is the author of The Virtue of Humility: A Thomistic Apologetic (Edwin Mellen Press).

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