Gay Marriage

In North Carolina, United Church of Christ Sues to Demand Right to Solemnize Gay Marriages

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Do people throw tiny pieces of gum instead of rice or confetti at gay weddings?
Credit: Purple Sherbet Photography / photo on flickr

Did you know North Carolina has a law on the books that that makes it a misdemeanor for a minister to solemnize the wedding of any couple who doesn't have a valid marriage license from the state? That it is illegal in the state to even perform this ceremony of words and hymns and vows that isn't even recognized as a valid contract without the state's stamp of approval anyway?

Perhaps its origins are from some sort of attempt to prevent fraud by some reprobate phony trying to make money off the naïve who didn't realize how many hoops they had to jump through to truly make a marriage legal.

In any event, North Carolina was the last state to pass a constitutional ban on same-sex recognition in 2012, before the bans started falling apart in other states. The United Church of Christ is now suing, arguing that the amendment, combined with the state's existing statutes criminalizing unlicensed weddings, is a violation of the church's First Amendment rights. From the Associated Press:

"North Carolina's marriage laws are a direct affront to freedom of religion," said the Rev. J. Bennett Guess, executive minister with the Cleveland-based United Church of Christ, which is a plaintiff in the lawsuit. "We feel that it is important that any person that comes into community life of a United Church of Christ congregation be afforded equal pastoral care and equal opportunity to religious services that clergy provide."

But in North Carolina, clergy are often faced with a troubling decision — "whether to provide those services or break the law," Guess said. "That's something no clergy member should be faced with."

Along with the United Church of Christ, which has more than 1 million parishioners, a dozen clergy members and same-sex couples who want to marry were listed as plaintiffs. The defendants included North Carolina Attorney General Roy Cooper and several county district attorneys as well as five registers of deeds.

Some of the reporting is a bit ambiguous and suggests the constitutional amendment passed in 2012 is what turned the solemnization into a crime. That's not exactly the case. There's no criminal element to the ban on same-sex marriage. It just says the state won't recognize them. The problem comes from two already existing statutes:

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.

And:

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.

It would seem like these two statutes were always a violation of a church's or minister's freedom of speech, regardless of the sexes of the participants. I could easily see the courts striking down the two statutes while leaving the ban on gay marriage recognition intact, meaning that it would no longer be a crime for a church to perform a gay marriage (or any other type of marriage); the state just wouldn't recognize it as a legal contract.

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  1. “”solemnize””

    uhm.

    I misread this initially. Freud.

    1. I knew something looked off about that sentence, but I couldn’t stick my finger in it.

  2. Uh,

    “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” etc.

    How on earth does this affect SSM?

    This provision is entitled “solemnization without license unlawful.” The next provision – the one about “marr[ying] any couple,” is entitled “penalty for solemnizing without license.” So it’s just a follow-up to the previous provision.

    What am I missing? How can this be tortured into banning SSM?

    1. It doesn’t – there is another law that does that. But this law combined with the law banning SSM prevents the church from doing religious/non-state SSM marriages.

    2. I am tracking with you but not sure if my following explanation fits NC.

      Next door here in TN, if you are a State licensed solemnizer, you can be fined $500 or so for marrying “incapable persons,” i.e., anybody or combination of anybodies who is not on the government legality list.

      Oddly, if the County Clerk issues a license to “incapable persons,” the license is deemed void, no refunds and IIRC, no fines either.

      1. OK, but does North Carolina have a counterpart to this?

        1. That is the bit I am not sure about. From the first reading of this thing I thought this NC was something similar, now it appears to be a big nothing.

    3. No outrage over the CoC’s loss of religious freedom, Eddie? That’s what this is about, really.

      1. Begging the question.

      2. I asked Eddie what should be the result if a religious polygamist filed suit for a rfra (state) exemption to, say, Idaho’s criminal prohibition of polygamy.

        He said it would meet the test of being narrowly tailored to meet a compelling interest.

        Certain religious exemptions trump others it seems.

        1. Exemption from what?

          1. Criminal polygamy statutes, remember?

            1. No, you said “Certain religious exemptions trump others it seems.”

              Which other exemptions were you referring to?

              1. Exemptions from polygamy laws vs. exemptions for, say, contraceptive mandates, or anti-discrimination laws.

                1. Oh, I see, you weren’t discussing the North Carolina case at all.

                  1. It is called an analogy, Eddie, it is one way to turn up double standards.

                    You champion Hobby Lobby’s right to be exempt from the contraceptive mandate on religious grounds. You champion the right of religious businesses to be exempt from discrimination laws on religious grounds. But you oppose a religious polygamists right to be exempt from criminal polygamy statutes.

                    See?

                    1. Oh, I see, you weren’t discussing the North Carolina case at all.

                    2. Again, analogies, how do they work?

                    3. Oh, I see, you weren’t discussing the North Carolina case at all.

                    4. I will try this again.

                      You champion religious exemptions from various laws in other settings. These people in NC are asking for a religious exemption from these laws. So Tonio and others have wondered, why do you seem opposed to their efforts? Don’t you favor religious exemptions? And I brought up a specific example, one you can not wiggle out of via statutory doubts, where you clearly argued against a religious exemption similar to the one’s you have championed.

                    5. “These people in NC are asking for a religious exemption from these laws.”

                      I could say, “how can they be exempt from a law which doesn’t apply to them,” but you’re so far down the rabbit hole my voice wouldn’t reach you.

                    6. Jimminy Crickets Eddie.

                      “And I brought up a specific example, one you can not wiggle out of via statutory doubts, where you clearly argued against a religious exemption similar to the one’s you have championed.”

                    7. “Oh, I see, you weren’t discussing the North Carolina case at all.”

        2. He’s living in his own private Idaho, Bo.

          1. He comes here whenever religious issues come up to try to argue how SoCons like him and us libertarians have common interests. When the very liberties he pushes in that effort come from a source ‘icky’ to SoCons he starts trying to distinguish. When you challenge him on it too deeply he retreats into sarcasm and runs off.

            And people wonder why libertarians are hesitant to work with SoCons.

  3. Huhn, I thought it was legal everywhere to marry any number or gender of folks, so long as you didn’t beg the state for permission to recognize it. Didn’t know NC was such a dick about this.

    1. NC is also the only state that actively enforces Alienation of Affection.

      1. There was a whole episode of Gomer Pyle: USMC dedicated to that issue. Forgot if Gomer was stationed in NC or CA for that one.

    2. I think a lot of states are dicks about that. They really mean it when they say “marriage license”.

  4. If the government got out of the marriage business, they would not need to ask permission from anybody.

    1. Anarchy! Anarchy! I don’t know what it means but I like saying it!

      1. Say it loud, say it proud!

    2. True, perhaps. But an interesting reading of this law is that clergy who are not authorized to perform state-licensed marriages could continue to perform any marriages they wished.

      1. Just like anybody else? Cool!

      2. So the University Life Church credentials I’ve had since 1969 are still good. That’s reassuring.

      3. I think most states automatically give clergy the power to marry people. I’m pretty sure I can with my ordination from the Universal Life Church. Or that’s what they claimed anyway.

        1. This is correct in most states, including NC it appears, but not all. The ULC says which states are the exception. I was married by a ULC “ordained minister” to get around the whole clergy or government minister requirements.

  5. As I thought:

    ” I have read the complaint, and can confidently say that the religious liberty claims in it are a frivolous waste of time for the federal district court in which it was filed. In fact, the suit is based on such a laughably obvious misreading of the relevant North Carolina statute that we can say the lawyers filing it are either incompetent, or willing to tell outrageous falsehoods about the plain meaning of a statute….

    “This law, whether wise or unwise, is merely a regulation by the state of the process of solemnizing, concluding, and recording those marriages the state recognizes as marriages. It has no application whatever to any situation where a clergyman wants to preside over a ceremony that the state does not recognize as a marriage….

    “Too bad for them that this over-hyped nonsense, complete with New York Times coverage, is exploded instantly by just *reading the statute* that is the target of the complaint.”

    http://www.nationalreview.com/…..w-j-franck

    1. The author is not a lawyer, correct?

      1. No more than you are.

        But he has taught constitutional law, he works with two religious-freedom law firms, has written extensively on legal topics, etc., etc.

        http://winst.org/about/staff/mfranck/

        1. A political scientist who has taught constitutional law might not be your man for state statutory interpretation.

          1. I suppose you aren’t going to offer an interpretation, either? Not being a lawyer.

            1. This fellow did not offer anything but conclusory statements. Where in that selection do you see ‘an interpretation?’

              1. Jonathan Haidt was right about the ideological Turing test.

                1. Can you point to the interpretation for this poor, benighted soul blinde by his ideology?

                  1. He wrote a book.

                    1. About this case? So you weren’t talking about the North Carolina case at all?

                      Look at the selection you put up there.
                      Every bit it of it is conclusory. He’s seen the complaint and he is sure it’s laughable and silly. The law is just a regulation of state record keeping and has no application to clergymen presiding over ceremonies.

                      No mention of the actual language of the statutes and what they mean, just concluding it is silly, laughable, merely record keeping and does not apply. Trust him, he’s wrote a book.

                    2. Matthew J. Franck and Jonathan Haidt are not the same person.

                      Have a nice day!

    2. So the state only invokes this statute for marriages it has officiated, but solemnizing an officiated marriage does not violate this statute.

  6. One man, one woman, one State-authorized solemnizer — the way God intended it.

    1. In TN, Quakers can self-solemnize.

      1. Episiarch’s mother caught him self-solemnizing once.

        1. +1 papal indulgence for the sin of self-solemnizing

  7. And of course marriage licenses are conferred by the register of deeds, because your spouse is your property. And people are fighting to engage in this nonsense?

    1. Yes, because nothing says “I love you” like the State’s blessing.

      1. A piece of paper in a state filing cabinet does wonders for a relationship.

        1. Paul Full-Stop, those state filing cabinets are magical, and heavy! They convey special rights, privileges and immunitiez on the documents therein.

    2. It does come in handy. There is some reason why so many straight people do it. I don’t want a driver’s license either, but I have one.

      1. There is some reason why so many straight people do it.

        Except in a few narrow cases where the tax savings are enormous or one of the spouses is a pending immigrant, I can’t imagine what that would be. Doug Stanhope’s bit on it really kind of nailed it.

  8. They better be careful how they go asserting religious freedom. People can cite that shit to get out of baking wedding cakes for you or giving you free contraceptives, you know.

  9. The biggest argument against this case is that the church didn’t seem to care enough to protect heterosexuals who tried to get married without a license.

    Yes, it’s different in that heterosexuals at least had the option of getting a license, but that doesn’t make it any less a trespass on freedom of religion. Why do I need to pay a fee to the state to perform a religious ceremony?

    1. Why do I need to pay a fee to the state to perform a religious ceremony?

      Uhm, because without state-recognition and licensing, then anyone will be performing religious ceremonies. Then where would we be?

      1. In a much more beautiful, groovy place man.

        1. *&^%$#@! Hippie.

          1. Dude! Don’t be a hater, man!

  10. Apparently, it’s licensing and state-recognition all the way down.

  11. Surprise surprise the resident Catholic Theocrat is here to tell us that government discrimination is a-okay because NR said so.

  12. really? They sued?
    Why didn’t they just do their marriages, and save an actual lawsuit only when and if the state actually does try to prosecute them under the law? It’s doubtful the prosecutors would ever use these laws in light of recent supreme court rulings, coupled with not wanting to waste the state’s money.

    How about not being a litigious dick?

    1. “Why didn’t they just do their marriages, and save an actual lawsuit only when and if the state actually does try to prosecute them under the law?”

      If they waited for the state to prosecute, they’d wait forever.

      How can they be accused of illegally “solemniz[ing] a marriage” if the union which they bless is not, in the state’s eyes, a marriage?

      1. Where do you get the “solemnizing the marriage” part? The statutes refer to “perform[ing] a ceremony of marriage between a man and woman…declar[ing] them to be husband and wife” and “marr[ing] any couple without a license being first delivered to that person.”

        1. *facepalm*

          1. Again, if the part about “solemnizing a marriage” is so prominent surely you can easily point to it, right? I’ve pointed to the parts that seem to be forbidden actions.

          2. “In North Carolina, United Church of Christ Sues to Demand Right to *Solemnize* Gay Marriages” (headline)

            “Did you know North Carolina has a law on the books that that makes it a misdemeanor for a minister to *solemnize*” etc. (first paragraph)

            “Every minister, officer, or any other person authorized to *solemnize* a marriage under the laws of this State” (one of the quoted statutes)

            1. But I will cheerfully replace the phrase to which you object with the phrase “marries any couple,” from the statute.

              1. Or I could use the statutory phrase “perform a ceremony of marriage between a man and woman.”

                I hope this meets your objections, whatever they are.

            2. The first part is the headline, Eddie. The second is a sentence in the article. Both are spectacularly irrelevant to interpreting the statute.

              The one selection actually relevant you have is the last one, but it says nothing about “soleminz[ing]” but rather “any other person authorized to solemnize,” which is not the action forbidden by the statute. That follows your selection “shall perform a ceremony of marriage between a man and woman, or shall declare them to be husband and wife.” Performing and declaring is the focus.

  13. Having studied and practiced domestic law, I look at all this stuff a lot differently than do the authors of all these articles. You can look at marriage from two basic viewpoints: the marriage vis-a-vis your beliefs, and then vis-a-vis the state.

    I don’t care who believes they’re married or who wants to enter into such “marriages.” However, the reason the state got involved in the first place is because 1) property accumulated between the spouses and 2) offspring that were produced. When you bust up a marriage that has either or both, you have to balance the parties’ property rights along with what’s in the best interest of the child. This is often hard and painful, but in a basic sense, entirely logical considering what’s at stake when you combine people for what is essentially sex + business. That’s why many states require some form of formal ceremony before signing the license. The state realizes that entering into this legal regime is a serious change in legal status and rights.

    Now as for SSM, the states have the legal prerogative to recognize them or not. But to get offended if they don’t, is to ignore the very real effects marriages and families have on every day life. In other words, all your state marriage laws are looking at the effect on children and the combination of the spouse’s property. As sloopyinca mentioned the other day, a brother and sister cannot marry each other. Is that reprehensible? Of course not for obvious reasons.

    1. I’m not entirely sure where you’re going on the SSM subject, so I’ll put that aside.

      vis-a-vis the state.

      This is all that matters any more.

      The problem with the state recognition of marriage is that it’s a kind of templatized, state-enforced financial contract that kicks in the instant you merely say “I do” to a ‘minister’ that paid the $10 fee.

      I believe that people would be better off if they were able to design their own marriage contracts which could be tailor made and/or updated as the wealth and property dynamics changed.

      Religious marriage can remain religious marrige, as (in my perfect world) it would have no ties to the state whatsoever.

    2. However, the reason the state got involved in the first place is because and then you went off into other things that were glommed on much later than the first Western marriage statute was adopted in Massachusetts, 1639.

      It was to make sure all these people running around the Bay Colony had marriages that looked like Puritan marriages, enforced by the police power of the officials who were required to pass a religious test to hold office.

      England did not enact a similar statute for about 100 years after MBC did, and the French were even later than that.

    3. Also, these are frequent distractors to the issue too: 1) property accumulated between the spouses and 2) offspring that were produced.

      1. Courts have handled mingled property of twosomes and moresomes for ages and they have plenty more practice now.

      2. Offspring have been produced by people who have never been government married to each other and never intend to be, yet when they split up (if they were even “together”) courts have all sorts of weapons at hand to deal with these cases too. BTW, we even have DNA tools now, that courts ignore if there is a marriage license in play – Presumption of Paternity.

      1. Not sure what your point is. The Texas family code, for example, ballooned in girth over just the last thirty years. Same for Louisiana and probably the same for many states. I don’t want that, as I’d prefer a more streamlined approach but it is a fact that the state getting into domestic law is because of property rights and children rights. There were no states in the 17th century so not sure what your glomming onto there.

        And please provide authority for “courts have all sorts of weapons at hand to deal with these cases too. BTW, we even have DNA tools now, that courts ignore if there is a marriage license in play – Presumption of Paternity.” I don’t know of any US state that has pure common law for domestic matters. Courts are part of the government too as I’m sure you realize. And I’m sure you also realize the difference between jurisprudential law and statutory law.

        1. I should be more precise: by “state,” I mean domestic laws codified by legislatures. Sure, religious sensitivities invariably come into play, i.e., blue laws, obscenity laws, etc. But the point is that the state is simply not “going away” with its involvement in marriage no matter how much anyone wants that. Just like contract law is not going to simply go away.

        2. There were no states in the 17th century so not sure what your glomming onto there.

          Well, this is proving to be not really worth the time. I don’t know where you are dreaming up my usage of a 17th century State. I was quite specific on where that 1639 Massachusetts Bay Colony statute was enacted. It was established in 1628 and their little fiefdom could indeed throw your butt in the hoosegow for violating any petty law they enacted.

          The Google is your friend.

          1. The Google is your friend.

            So are law books.

    4. Gay couples can have children and shared property. And of course non-married people have children, many in fact.

      1. Can you provide citations to which states legally allow gay couples to adopt children?

        1. Apparently, here is the list:

          http://en.wikipedia.org/wiki/L…..x_adoption

  14. For the record I posted an article on this topic in the PM Links at 4:31 PM.

    /another plum dress

  15. OT: That FBC ad with the gaggle of reason staff is the worst resolution of any internet ad I’ve seen since the 1990s.

  16. Good for the UCC!

  17. I could easily see the courts striking down the two statutes while leaving the ban on gay marriage recognition intact, meaning that it would no longer be a crime for a church to perform a gay marriage (or any other type of marriage); the state just wouldn’t recognize it as a legal contract.

    The district court would likelty wait until the Bostic v. Rainey appeal is decided before deciding the merits of the case, as that appeal will decide the substantive due process and equal protection claims.

    This could justify a preliminary injunction, as what the church is seeking is restraint of adverse state action (rather than a mandate of positive state action).

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