A group of North Carolina clergy are challenging their state’s constitutional prohibition on same sex marriage on religious grounds. They claim the prohibition violates their right to practice their religion freely as guaranteed in the First Amendment to the Constitution.
(Charlotte Observer) — A group of Charlotte-area ministers helped launch the country’s first faith-based challenge to same-sex marriage bans, claiming in a lawsuit filed Monday that North Carolina’s laws block them from practicing their religion.
The local religious leaders, who include a rabbi, are joined by colleagues from Asheville and Raleigh along with a national denomination, the United Church of Christ. All support the rights of same-sex couples to marry.
They say state prohibitions, including a constitutional amendment passed by voters in 2012, violate their First Amendment right of freedom of religion. …
In my opinion, they have no standing to bring the suit due to loopholes in North Carolina’s marriage laws. Even in opposite sex marriages, clergy only submits their documentation to the state. It is the state that determines if the marriage is recognizable, which the marrying clergy does not control. Hence, no one is being denied their freedom of religious practice. The ministers can very well “marry” any same sex couple they wish. They can bring the betrothed into their sanctuary before their friends and family where they perform their vows to be wed.
Someone might object by citing state marriage laws, as one person suggests, “I looked at the complaint. The complaint cites to the following NC statutes which, taken together, do seem to actually make it unlawful (a misdemeanor) for this minister to solemnize a same-sex marriage.”
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.
Whenever a man and woman have been lawfully married in accordance with the laws of the state in which the marriage ceremony took place, and said marriage was performed by a magistrate or some other civil official duly authorized to perform such ceremony, and the parties thereafter wish to confirm their marriage vows before an ordained minister or minister authorized by a church, or in a ceremony recognized by any religious denomination, federally or State recognized Indian Nation or Tribe, nothing herein shall be deemed to prohibit such confirmation ceremony; provided, however, that such confirmation ceremony shall not be deemed in law to be a marriage ceremony, such confirmation ceremony shall in no way affect the validity or invalidity of the prior marriage ceremony performed by a civil official, no license for such confirmation ceremony shall be issued by a register of deeds, and no record of such confirmation ceremony may be kept by a register of deeds. (1871-2, c. 193, s. 4; Code, s. 1813; Rev., s. 2086; C.S., s. 2498; 1957, c. 1261; 1959, c. 338; 1967, c. 957, ss. 6, 9; 1977, c. 592, s. 2; 2001-62, s. 6.)
However, upon a careful reading, it’s only a misdemeanor for solemnization of a marriage between a man and woman without a valid marriage license. Because by definition marriage is only a thing reserved for opposite sex couples, a same sex marriage is not a marriage and thus does not fall under the restrictions of this statute. Granted, the “marriage” ceremony will not be recognized by the state thus bestowing on the couple the traditional legal benefits marriage ensures. But such benefits as default property transfer upon death can be resolved through other contracts and wills.
The freedom to practice one’s religion does not require a government to endorse or accept the rites and rituals performed by your church. This is true of even traditional marriages. If the government were to step out of the marriage business altogether, there would be no suppression of religious freedoms. These ministers may do as they wish. They may perform the ceremony; the churches may call it a marriage. So whether the state blesses this or not is irrelevant to whether they can do such in a religious context which essentially means they are freely practicing their religion. If and when the state steps in and prohibits the church from even performing the ceremony, then will these ministers have a case.