Gay Marriage | News | North Carolina | United Church of Christ

North Carolina Clergy Files First-of-its-Kind Lawsuit Challenging State's Gay Marriage Ban

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BY LISA KEEN

In a first of its kind lawsuit, a group of ministers filed a complaint in federal court Monday against North Carolina’s ban on marriage for same-sex couples, saying that the law’s penalties against clergy who conduct ceremonies for same-sex marriages violates their free exercise of religion.

UccThe lawsuit, United Church of Christ v. Cooper, was organized by the United Church of Christ and filed in the U.S. District Court for the Western District of North Carolina, in Charlotte. The UCC is a mainline Protestant denomination with an estimated one million members across the country.

The lawsuit challenges all North Carolina laws that define marriage as exclusively for opposite-sex couples, as well as the state’s “Marriage Laws” that “preclude—through the imposition of criminal penalties and otherwise— religious ministers, clergy, or anyone else from performing a ceremony of marriage for same-sex couples, thereby preventing couples in those congregations from freely participating in such religious ceremonies.”

The plaintiffs include UCC, clergy plaintiffs, and same-sex couple plaintiffs.

“Under North Carolina law, the Clergy Plaintiffs are prohibited under threat of criminal prosecution from performing any such religious ceremonies, and the Couple Plaintiffs are prohibited from becoming married in the tradition of their respective faiths. Such laws,” stated the lawsuit, “violate the First Amendment’s Free Exercise Clause.”

R_cooperThe lawsuit also claims the ban violates the First Amendment right to expressive association of all plaintiffs and, for couple plaintiffs, the constitutional rights to equal protection of the law and due process. It asks the district court to issue both a preliminary and permanent injunction against North Carolina Attorney General Roy Cooper (right) and other state defendants to stop enforcement of the law.

Evan Wolfson, head of the national Freedom to Marry group, notes that North Carolina’s ban goes farther than most state bans by “actually criminalizing” a religious ceremony for a same-sex couple.

“In their zeal to withhold marriage from gay couples in North Carolina,” said Wolfson, “officials not only pushed a discriminatory constitutional amendment, but further piled on -- actually criminalizing clergy marrying couples within their own religious beliefs. The intent was to chill houses of worship from celebrating love in their own faith, and crossed the line in violating religious freedom on top of violating the constitutional guarantee of the freedom to marry.”
Jon Davidson, legal director for Lambda Legal, called the lawsuit “particularly promising” because of the criminalization aspect.

North Carolina makes it a misdemeanor for a “minister, officer or any other person authorized to solemnize a marriage” under North Carolina law to marry a couple without them having obtained a marriage license, which same-sex couples cannot obtain from the state.

“If this provision applies to purely religious marriage ceremonies, as opposed to only civil marriages solemnized by clergy,” said Davidson, “I believe it would violate the religious freedom guarantee of the First Amendment.”

States law can define who can get married and who cannot. Many states, for instance, ban marriage between first cousins. They justify such bans by pointing to scientific studies that indicate an increased risk for producing children with birth defects. But states with bans on same-sex marriages have had a hard time justifying them, and courts have routinely found their explanations unconvincing. Most lawsuits challenging state bans on allowing same-sex couples to marry argue that the bans are driven by a desire to discriminate against LGBT people.

Gary Buseck, legal director for Gay & Lesbian Advocates & Defenders, said the religious arguments in support of allowing same-sex couples to marry “have been floating around for some years and have been laid out to some extent in amicus briefs in some cases.” But he says the UCC case may not move far at all simply because there are cases further along in the Fourth Circuit U.S. Court of Appeals, which includes North Carolina.

The Fourth Circuit will hear arguments May 13 in Bostic v. Schaefer, a case being led by the legal team of Ted Olson and David Boies. Lambda Legal and the ACLU have become intervenors in that case because they have a similar one in Virginia, too.

Geoffrey_blackRev. Geoffrey A. Black, general minister and president of the UCC, said his denomination is “proud to defend the religious freedoms upon which this nation was founded.”

Meanwhile, North Carolina Attorney General Roy Cooper had until Monday to respond to a request in an ACLU-led lawsuit, Fisher-Borne v. Smith, on behalf of six couples. The request is seeking a preliminary injunction and expedited review to allow a lesbian couple’s marriage in Massachusetts be recognized in North Carolina to secure health coverage for their child with cerebral palsy.

Cooper filed a brief Monday opposing the request, calling it an “extraordinary step” that would, in essence, undo the North Carolina law. The brief says the harm that might be experienced by the couple and their child is “outweighed by the harm to the public if State officials are enjoined from enforcing the democratically ratified State laws and Constitution.”

“To alter the definition of marriage, by means of injunctive relief granted prior to this court’s ruling on State Defendants’ pending dispositive motions, prior to the final determination of this action on merits, and prior to the Fourth Circuit’s and the United States Supreme Court’s guidance on this important social issue,” wrote Cooper, “is not in keeping with the applicable jurisprudence or the Supreme Court’s preferred deliberative process. [Plaintiffs’] motion should be denied on this basis alone.”

The response was likely a surprise to some, given that Cooper, a Democrat, has expressed his opposition to the ban on same-sex marriage. But he has also vowed to enforce the law as long as it’s on the books. Local papers have reported for months that Cooper is expected to be a candidate for governor in 2016.

The ACLU has until May 5 to reply to Cooper’s response.

© 2014 Keen News Service. All rights reserved.

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Comments

  1. This just makes me smile. Mostly because it must drive NOM and the other hate groups that use religion to justify their bigotry right up the wall.

    At some point, state governments are going to realize that discriminatory laws and constitutional amendments will bring endless lawsuits - which will inevitably find the laws and amendments are unconstitutional. How much money are they going to spend to fight a losing battle before their constituents say 'Enough!'?

    Posted by: MikeBoston | Apr 29, 2014 1:15:16 PM


  2. Wow... That second to last paragraph is some densely packed legalese. Is he saying "we can't 'redefine' marriage until somebody more important does it first"? The arguments of the anti marriage crowd are getting stranger every day.

    Posted by: Anonymous | Apr 29, 2014 1:29:29 PM


  3. It's an interesting case because it involves not only the (fundamental) right of a same-sex couple to marry, but also it criminalizes the (religious) right of a pastor to perform a marriage that his/her church permits.

    The problem is the following: suppose a religious denomination allows its pastors to marry (opposite sex) boys and girls between ages 14 and 16 without parental permission, but the state criminalizes the performance of such marriages without parental permission? Could a pastor claim a religious right to perform that marriage? In the end, I think it comes back to whether the state itself has the right to prohibit certain marriages.

    But, good job. These lawsuits continue to keep the heat on, especially when some of them now involve pastors who claim their religious rights to perform ceremonies is being wrongly denied by a state.

    Posted by: MiddleoftheRoader | Apr 29, 2014 1:31:25 PM


  4. @Middleoftheroader: That's not really a problem since that is a discussion concerning the age of consent rather than the Rights of consenting adults. Age of Consent is a much more far reaching concern that would affect more than just civil marriage laws...but then some on the Far Right really think that child labor (both in sweat shops and birthing wards) is just fine.

    Posted by: AggieCowboy | Apr 29, 2014 2:09:32 PM


  5. I don't know why it keeps getting missed in the coverage, but there's also a rabbi in the mix, my friend and a former student of my college, Jonathan Freirich. And a Jewish couple of plaintiffs too.

    Posted by: KevinVt | Apr 29, 2014 2:25:22 PM


  6. @MIDDLEOFTHEROADER, pastors could marry the adolescent... this doesn't mean the state has to recognize it.

    In Gypsy and Traveller communities, these kind of things already happen in the US (adolescent marriage) but the government doesn't recognize the marriage.

    The N.C. law is different in that it bans a religious ceremony unless it is approved by the government (requiring a legal license); that's a line the First Amendment definitely won't allow laws to cross.

    Posted by: unruly | Apr 29, 2014 2:30:27 PM


  7. "The problem is the following: suppose a religious denomination allows its pastors to marry (opposite sex) boys and girls between ages 14 and 16 without parental permission, but the state criminalizes the performance of such marriages without parental permission?"

    No the problem is doing what you are doing, confusing the religious ceremony and interpretation with the civil legal rights and recognition.

    A bar mitzvah is the religious recognition of a Jewish boy becoming a man, but it doesn't make him eligible to drink, vote, drive, or sign contracts. It carries a purely religious significance.

    A pastor who performed some religious ceremony declaring two ineligible people to be married doesn't carry with it any civil recognition without a license and the completed, witnessed ceremony being filed with the state. IF a pastor declared two 10 year olds to be religiously married in their faith tradition, the state is not bound to agree. If a pastor declares a 10 year old married to a 40 year old, if there is any sex involved, the state can pack him off for statutory rape. If a pastor declares three people married, again, the state can ignore it.

    This really isn't a case about civil marriage equality at all, and I would hope that the courts make the distinction clear. They should definitely declare the laws criminalizing performing religious weddings to be unconstitutional, but they should strongly avoid conflating that issue with the right to marry.

    Religions no more get to force the state to allow people to marry because of their religious beliefs than they get to force the state to refuse to allow people to marry.

    It would be a serious blow for marriage equality if a court upheld a religion's right to define civil marriage - even if they define it in our favor.

    The clear and obvious unconstitutionality of marriage bans needs to be treated separately.

    Posted by: Lymis | Apr 29, 2014 2:45:52 PM


  8. of course, the 1st comments from the fundie christianist opposition is that the UCC is not really a 'christian' denomination.

    what they mean is it is not the 'correct' kind of christian denomination - theirs!

    how can they tell? there are over 41,000 different 'christian' denominations in the world...

    Posted by: mike/ | Apr 29, 2014 5:34:55 PM


  9. Mike:
    How can they have the "correct" denomination? They don't even have the "correct" Gospel. All four of the Gospels contradict one another.

    Posted by: simon | Apr 29, 2014 6:29:09 PM


  10. Smart of them to use the freedom of religion approach. For far too long that has been used as an excuse to discriminate.
    In any case, I fail to understand how marriage equality damages a state. If anything, states that discriminate tend to suffer financially. With all its problems, I'm still glad I live in the socially progressive state of Illinois.

    Posted by: Rich | Apr 29, 2014 6:54:43 PM


  11. There is plenty of schadenfreude to go around with this one. Pastor Black is black and is bringing suit against a former Confederate State of America, that riles up both white Southerners and conservative black folks wherever they live.

    Remember the rule from the play and movie and musical "Chicago". It doesn't matter what they print about you in the newspaper, as long as they spell your name right."

    In our case, "It doesn't matter why the nation keeps talking about gay people getting married as long as they keep talking about it because we are winning over and over again."

    My fundamentalist Mother has invited me and my husband home to WA state this Summer. It is either that she's going to let us sleep together in her house or we'll go to Dad's and sleep together there [hmmm, maybe she's planning an intervention?]. Her state legislature approved it and her governor signed it. I plan to ask her what changed in her mind if we get to sleep together under her roof. I'm honestly curious. If we have to go to Dad's, well, then I won't be speaking to her much at all and she'll know why.

    Posted by: ben~andy | Jun 27, 2014 2:16:42 AM


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