For those who are interested in the NC case, this is not the first time that
the issue has been raised. The North Carolina state courts previously
addressed a challenge to NCGS 51-6 and 51-7 brought by the following plaintiffs
(among others):
"(2) three ministers who do not wish to have the marriages they perform
licensed and registered, two of whom also are willing to solemnize the
marriages of same-sex couples; (3) same-sex domestic partners who desire to
have a ceremonial, non-religious marriage registered in the state; (4) same-sex
domestic partners who desire to have a ceremonial, religious marriage
registered in the state; (5) a heterosexual couple who desired to have a
religious ceremonial marriage, but were unwilling to be married pursuant to a
state issued license because they both were permanently and totally disabled
and were receiving Medicaid benefits that would be cut off if they married
pursuant to a state license; and (6) an unmarried, heterosexual man who may
wish to marry a woman in the future, but who does not wish to participate in
any type of state-required ceremony."
In April 2012, the trial court granted the NC Attorney General's motion to
dismiss on the grounds that:
"Plaintiffs have not alleged any waiver of sovereign immunity by either
defendant and have not alleged that the Defendant Attorney General has taken or
threatened to take any particular action against any of them pursuant to any of
those provisions of Chapter 51. Plaintiffs seek no monetary damages or
injunctive relief."
The case was affirmed on appeal (Thigpen v. Cooper, 739 S.E.2d 165 (2013)). It
seems to me that the federal court can easily follow the holding of Thigpen and
the plain language of the statute rather than addressing the constitutional
issues involved.
Will
Will Esser --- Ad Majorem Dei Gloriam
Charlotte, North Carolina
********************
"You are anxious and worried about many things.
There is need of only one thing." Luke 10:41-42
********************
On Saturday, May 10, 2014 7:36 PM, Skip L'Heureux <s...@queenschurches.org>
wrote:
I don’t know about NC law or practice, but in New York a second religious
ceremony requires a second license which is noted as if a second marriage but
endorsed as being for a second ceremony. This would be true if both ceremonies
are the same weekend or a longer time apart. Each is recorded with the State
and causes a certificate of marriage to be issued.
A renewal of vows is not considered a wedding and requires no state license.
s...@queenschurches.org
Rev. N. J. L'Heureux, Jr.
Executive Director
Queens Federation of Churches
86-17 105th Street
Richmond Hill, New York 11418-1597
Voice (718) 847-6764
FAX (718) 847-7392
Visit our Web site at http://www.QueensChurches.org/
From:religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark
Sent: Saturday, May 10, 2014 4:40 PM
To: Law & Religion issues for Law Academics
Subject: RE: States prohibiting churches from sanctioning same-sex marriage
This does not seem to me to be an issue that is limited to same-sex marriage
ceremonies. Any religious ceremony by which a “minister” solemnizes a marriage
for which a North Carolina license hasn’t been issued is prohibited, with the
exception mentioned by Doug. The issue could be much broader, and the criminal
statute already would have been triggered by numerous Catholic weddings, if I
understand Catholic doctrine correctly. I doubt that Catholic priests have been
prosecuted, which suggests that the statutes have been treated as applying in
the narrow way Eugene suggests.
Here is the analysis:
The religious ceremony exception seems to be in 51-6, not 51-7 (as Doug said),
and seems to refer only to out-of-state weddings.
Consider the result if the statutes are interpreted as Steve suggests (and as
Doug thinks is perhaps correct). Suppose that a couple is married in Maryland
by a Presbyterian minister pursuant to a Maryland license; the husband is
Catholic and the wife is Presbyterian. If I understand Catholic doctrine
correctly (or perhaps Catholic doctrine as it existed in the past?) their
marriage will not be recognized as valid by the Catholic Church.
They move to North Carolina and at some point want the marriage to be
recognized by the Catholic Church. They need to have a wedding ceremony
performed by a Catholic priest. If the Catholic ceremony in North Carolina is
the kind of marriage covered by 51-7, then the priest would violate the law by
holding the wedding service. I think this kind of wedding service must have
been done hundreds of times or more in North Carolina. I don’t think there can
have been an intent to criminalize the priests’ conduct in performing such
marriages. That suggests strongly that the kind of ceremony that is prohibited
is one that purports to create a civil marriage, not one that is designed to
create a religious marriage. The absence of prosecution of Catholic priests
would suggest that the law should be given the narrow construction argued for
by Eugene. The narrow construction is a reasonable one; the phrase “marries any
couple” (in 51-7) can easily be
interpreted to mean “marries the couple for civil purposes,” which would
explain the non-prosecution of the priests.
All of this would complement Eugene’s argument that the phrase “as required by
law” limits the prohibition to those situations in which a license is required
by law for the religious ceremony to have its purported effect of creating a
valid civil marriage.
Does that make sense?
I suppose there still could be a question whether a religious official should
be permitted to marry a couple without a license (any couple, I suppose) and
take the position that it is a valid marriage for all purposes. Assume that the
couple and the religious official know that state officials will act as though
the marriage is not a valid civil marriage, but they believe that it is wrong
to get a license issued by the state and that the state must (as a matter of
natural law or their interpretation of the Constitution or of state law or some
such thing) treat the marriage as valid. They reject the positivist notion that
the law is what officials do. There is no fraud involved, because everyone
knows what is going on. That issue could come up in any state with regard to
any kind of marriage. Could such a ceremony be outlawed? (Perhaps some kind of
fraud on third parties might result, if they hold themselves out as civilly
married, knowing that state
officials will not so treat them.)
Mark
Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law
From:religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Friday, May 09, 2014 3:21 PM
To: Law & Religion issues for Law Academics
Subject: RE: States prohibiting churches from sanctioning same-sex marriage
Oh, I agree that the law doesn’t categorically exempt purely
religious ceremonies. The prohibition in section 51-7 would apply to such
ceremonies, but only if a license is “required by law” for such ceremonies.
But I don’t see how section 51-7 makes it a crime to celebrate a religious
ceremony connected to a marriage for which a license is neither required nor
even allowed. Or am I missing something?
Eugene
From:religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Friday, May 09, 2014 3:17 PM
To: 'Law & Religion issues for Law Academics'
Subject: RE: States prohibiting churches from sanctioning same-sex marriage
The principal source of ambiguity is that §51-7 goes on to provide an exception
for couples who are married by a judge and later have a religious ceremony as
well. Hard to see why that exception was needed if no one thought the law
reached purely religious ceremonies.
Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546
From:religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Friday, May 09, 2014 6:11 PM
To: Law & Religion issues for Law Academics
Subject: RE: States prohibiting churches from sanctioning same-sex marriage
Well, I’d be happy to see a declaratory judgment making clear
that the statutes don’t apply here. But that seems to me to be pretty certain
from the text of the statute; section 51-7 provides, “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.” In a same-sex marriage, there is no license required by law to
be delivered to the person; indeed, no license is legally possible. So I don’t
see any
basis for invalidating the statute on free speech or free exercise grounds as
to same-sex marriages, though, as I said, it would be just fine to make clear
that the statute indeed doesn’t bar such ceremonies.
From:religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Friday, May 09, 2014 12:47 PM
To: Law Religion & Law List
Subject: Re: States prohibiting churches from sanctioning same-sex marriage
I don’t find that analysis persuasive in the sense that ministers would
properly fear prosecution under that statute for performing a solemnization
ceremony for same sex couples — they would, as I read the statute, violate two
aspects of it: peforming a solemnization ceremony between same sex couples AND
doing so without a state-issued marriage license to perform that ceremony.
To avoid the constitutional problem, the NC court could interpret it as Will
Esser proposes, but it could also find the statute to be unconsitutionally
vague or ambiguous as to the particular issue of performing a solemnization
ceremony for a same sex couple.
Given that the suit is in federal court and no state court has definitively
ruled that Esser’s interpretation is the correct one, it seems that the federal
court might well interpret it as unconstitutionally chilling free exercise (and
free speech).
Steve
--
Prof. Steven D. Jamar vox: 202-806-8017
Director of International Programs, Institute for Intellectual Property and
Social Justice http://iipsj.org/
Howard University School of Law fax: 202-806-8567
http://sdjlaw.org/
"I do not at all resent criticism, even when, for the sake of emphasis, it for
a time parts company with reality."
Winston Churchill, speech to the House of Commons, 1941
On May 9, 2014, at 2:13 PM, Volokh, Eugene <vol...@law.ucla.edu> wrote:
I agree entirely, but which particular statutory scheme is
under discussion? If it’s the North Carolina one, a recent post argued, I
think, persuasively, that North Carolina statutes don’t actually prohibit
religious same-sex marriage ceremonies.
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Friday, May 09, 2014 10:36 AM
To: Law & Religion issues for Law Academics
Subject: States prohibiting churches from sanctioning same-sex marriage
Isn’t this an easy case of free exercise violation? Assuming that states do
not need to recognize same sex marriages as a matter of federal equal
protection law, and do not need recognize church-recognized same sex marriages
as vaild for state purposes (though the state would still recognize church
authority to perform opposite-sex marriage), can the state ban a church from
performing a religious marriage ceremony?
--
Prof. Steven D. Jamar vox: 202-806-8017
Director of International Programs, Institute for Intellectual Property and
Social Justice http://iipsj.org
Howard University School of Law fax: 202-806-8567
http://sdjlaw.org
"Education: the path from cocky ignorance to miserable uncertainty."
Mark Twain
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