Bench Memos

Incompetence, or Stupidity, in that NC “Religious Liberty” Marriage Case?

Yesterday Ramesh Ponnuru responded at The Corner to a Slate piece by Mark Joseph Stern, describing a lawsuit brought against the state of North Carolina by (among others) the General Synod of the United Church of Christ.  According to Stern,

Under North Carolina law, a minister who officiates a marriage ceremony between a couple with no valid marriage license is guilty of a Class A misdemeanor and can be thrown in jail for 45 days. And since gay marriage is illegal in North Carolina, that means any minister who dares celebrate a gay union in his church may face jail time.

This, Stern said, is an egregious violation of religious liberty, so what did the putative defenders of that liberty have to say about it?  Ramesh said he’d never heard of this North Carolina law, but if the matter were as Stern described, he was against it.  Later, on second thought after looking at the law in question, though, Ramesh said it didn’t sound at all like the situation Stern claimed it was.

These second thoughts were wise.  The lawsuit is bogus through and through, a fact you will not of course learn from Stern, or from Michael Paulson of the New York Times, who wrote about it for today’s paper.  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.

Here’s the situation: North Carolina recognizes marriages only between a man and a woman.  Like other states, it authorizes clergy in various religious faiths to solemnize those marriages, fill out and sign civil marriages, and file them with the appropriate state authorities.  There are civil and criminal penalties in North Carolina for ministers and other authorized persons who do not follow correct procedures.

Local clergy in several faiths, including the United Church of Christ, claim in their federal court filing that the laws imposing such potential penalties actually forbid them to engage in ceremonies they wish to perform in their own churches and synagogues for same-sex couples, which they are pleased to call a “marriage,” because they would acting outside the prescribed state licensing scheme for civil marriages.  Hence they claim to fear prosecution.  In the words of the complaint:

[M]inisters and others who are authorized to conduct marriages in North Carolina are expressly precluded by State law from performing any ceremony of marriage between same-sex couples, even if their faith and religious beliefs allow them to conduct such ceremonies and recognize those marriages. . . .

If a minister conducts any marriage ceremony between same-sex couples, he or she is guilty of a crime.

These claims are patently false.  The complaint itself, immediately after the last line above, quotes the relevant statutory language, but the authors of the complaint evidently do not understand it:

a. North Carolina General Statute § 51-6 states: “Solemnization without license unlawful. 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.”

b. North Carolina General Statute § 51-7 states: “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.”

These two provisions must be read together, in the context of the state’s decision to recognize marriages only between a man and a woman.  § 51-6 requires authorized persons to act only on valid marriage licenses, if they are going to “declare” a couple “husband and wife” for civil legal purposes.  § 51-7 further tells these authorized persons that they are answerable in any case where they do not first get the license, or fail to act on it before it expires, or fail to return it properly finished to the register of deeds in ten days. 

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.  To their hearts’ content, the clergy of the United Church of Christ may “marry” away, in twos and threes and fives, any persons of either sex just as freely as they wish, and the state of North Carolina has nothing to say about it.  Their religious freedom to call these unions “marriages” for their own purposes is completely untrammeled.  They just aren’t marriages under North Carolina law.  And because they aren’t, neither statutory provision above has any application.  Those laws are quite orthogonal, occupying a domain untouched by whatever it is these clergy want to do in their houses of worship.

It is notable that this trumped-up fakery is in the guise of a lawsuit for declaratory relief.  That is, there is no pending prosecution of any clergyman in North Carolina for “violating” the totally imaginary “prohibition” on their same-sex “marriage” ceremonies.  I doubt there has ever been a whisper of a hint of a threat to prosecute, for a complete defense against such prosecution is available in the form of a competent reading of the law.

The complaint filed in Charlotte federal court names three classes of plaintiffs: several “religious denominations,” several clergy or “minister plaintiffs,” and several same-sex couples who want to get married.  The last of these groups is making the now-familiar set of (outlandish) due-process and equal-protection claims.  But they seem to have felt they needed some even more outlandish religious-liberty claims, so they have invited the other two groups of plaintiffs to help them manufacture a transparently ridiculous humbug of a case. 

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.



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