How to Balance Religious Freedom and Civil Rights

The latest round of litigation over same sex marriage occurred this week in North Carolina, where clergy and parishoners of the United Church of Christ challenged Amendment One to the NC Constitution, passed in 2011.  One element of the suit challenged the highlight-grabbing portion of Amendment One, which placed a ban on same-sex marriages into the NC Constitution.  I don't want to be dismissive of this element of the case, as it is clearly of enormous importance to the plaintiffs, but that is the less-interesting part of the case.  We have seen many similar challenges to state constitutional amendments regarding same-sex marriage, and the arguments are well established at this point.

The part of the case that caught my eye was the religious freedom challenge to Amendment One made by the UCC ministers.  Under Amendment One, it would be a crime for a UCC minister to perform a marriage ceremony involving a same sex couple.  Since the UCC Church authorizes same sex marriages, and has since 2005, the UCC clergy argue that this law violates their religious freedom.

But, it's actually a little more complicated than that.  The media has reported that Amendment One specifically singled out same sex marriage as a crime.  That's not quite right--Amendment One makes it a crime to perform or officiate any marriage where there is not a valid license to be married.  Since NC will not issue marriage licenses to same sex couples, then performing same sex marriages are criminalized, but so are marriages where the couple doesn't have a marriage license for whatever reason.  Here's the full text of the statute (N.C. Gen. Stat. s. 51-7):

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.

As it turns out, provisions like this are pretty common.  A quick Westlaw search for my home state of Ohio shows a similar provision.  Except, in Ohio, the penalty is a $500 fine and up to six months in jail.

Which brings us to a broader question--why exactly are clergy "authorized to solemnize a marriage under the laws of [the] State"?  What is the point?
Quick personal story.  Back in October, I presided over the wedding of my sister and her now-husband.  To do so, I had to go and become a "minister" through one of those on-line churches.  I felt weird doing that.  Not because I felt weird about performing the wedding--I was beyond flattered and moved that Katie and Chris asked me to do it.  I felt weird about going and getting what everyone understands to be a B.S. credential.  No one views me as a "minister," nor should they.  What is the point of going through the Kabuki theatre of pretending I was a member of the clergy?  What is accomplished here?

If we broke the link between state recognition of marriage and the religious recognition of marriage, Katie and Chris could have gone to the town clerk's office and signed their marriage license, and then I could have done the wedding exactly as we did, minus the unnecessary step of becoming a "minister."
It's not even more work for the couple---they have to go to the clerk's office to get the license anyway, so it's not really an extra step.  For a religious wedding, the priest or minister or rabbi or whatever could ask to see the completed marriage license before performing the service.  Or, maybe they would insist that you have the religious ceremony first and then go and get it recognized civilly.  Or maybe they wouldn't care one way or the other about what the state does, such as in the case of the UCC ministers marrying a gay couple in NC.  And, for couples that don't want any kind of ceremony at all, they can just go to the clerk's office and then go home, as they do now.  The only people that are hurt are the on-line churches, who would no longer get the $40 from people like me.

Moreover, with regard to the gay marriage issue, it seems like this is better for everyone.  Proponents of gay marriage would still be fighting for a civil recognition of same sex marriage, and would be free of having to calm fears that a Baptist minister is going to be made to perform a ceremony against his will.  The same Baptist minister is still free to advocate against same-sex marriage in the civil sphere, but now has the assurance that he cannot be made to perform any marriage he doesn't want to do.  Everyone is at least a little bit happy, and no one concedes any ground.  Indeed, there are a couple of conservative voices that are coming to the same conclusion.  Albert Mohler, a well-known thinker in the Baptist world, basically came out in favor of that portion of the UCC ministers' lawsuit.

To be honest, I think this is a no-brainer.  I don't see any value to anyone for ministers to be deputized by the state to solemnize marriages in a legal sense, and I see potentially a host of problems.  I do think it entangles religion and the state in an improper manner.  And, I think there is an easy fix that could be implemented rapidly and relatively painlessly.

Good luck to the UCC plaintiffs in their lawsuit.  They just might cause a win-win for everyone in the marriage sphere.  Wouldn't that be nice?

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