Can a state prohibit church leaders (or really, anybody) from "solemnizing" a marriage that is not intended to represent a legal contract for government recognition? If the couple (or more than two, for that matter) don't ever seek the benefits or privileges associated with matrimony, why should the state care?
That question is at the heart of a federal lawsuit filed by Detroit Pastor Neil Patrick Carrick against the state of Michigan. I wrote about his case last week. In short, state law appears to require the solemnization of any marriage to be handled in accordance to state law and be recognized by state law or else it is considered a misdemeanor crime. Carrick is suing, arguing that this is a violation of free speech.
Federal Judge Judith Levy responded to the lawsuit by asking both Carrick's side and the state of Michigan (as represented by Gov. Rick Snyder and Attorney General Bill Schuette) to answer a question: "Do Michigan's laws permitting civil and criminal sanctions of persons who improperly solemnize marriages authorize the State to impose those sanctions when the ceremony is purely private in nature, and not intended to have a legal effect?" Levy ordered both parties to submit their responses by last Friday.
The state of Michigan has opted not to answer the question. At all. Not even a hint. That's because the attorney general's office is trying to get the case dismissed because the plaintiff lacks standing to sue. That is because the state has not charged Carrick with violating the law in the first place: "since the statutes at issue have not been enforced, or even threatened to be enforced, currently or in the future against Plaintiff, he has not suffered the requisite 'injury in fact.'" Therefore, the state argues the court lacks any jurisdiction to hear the case, and it must be dismissed. And therefore the state doesn't actually have to indicate whether it believes the law can be enforced even against private marriages. Furthermore, the brief states that even if the current governor and attorney general gave a response, it would have no legal consequences and would not bind future administrations to any sort of legal interpretations.
A very technical dodge of the question at hand that left Carrick frustrated. He responded via email, "I would [have] lived with a consent order saying they would not apply these laws to religious ceremony participants who had no intention to have them legally recognized as a licensed marriage or like."
But government attorneys are not inclined to declare a tool off-limits unless they're forced (either by courts or circumstances) to do so. Carrick knows this, and that's one of the reason he pursued the lawsuit. As he explained to me last week, and as his lawyers include in his brief, lawyers and courts can use old, seemingly archaic laws to punish folks even though the rules are completely outdated. They noted a child custody case in which Michigan's law against cohabitation, established in 1931, is invoked.
While I am not a lawyer and wouldn't even call myself a legal expert, the lack of standing may be a pretty big legal issue. If a law is not being enforced, it's very tough for citizens to challenge, even if it's still on the books. If nothing else, Carrick may have just guaranteed that they won't try to charge him with violating the law anyway.