Greetings,
Yesterday (4/28) the General Synod of the United Church of Christ ("UCC")
sued the state of North Carolina in Federal court (link to complaint:
http://uccfiles.com/pdf/complaint.pdf) claiming that a constitutional
amendment (Amendment One) prohibiting same-sex marriage is unconstitutional
under the Free Exercise Clause. They have also sued under a theory of
expressive association, denial of due process, and denial of equal
protection.
North Carolina appears to be rather unique in that it potentially (if not
in practice) makes it a misdemeanor for clergy to perform a same-sex
marriage ceremony, so in addition to the potential harm to same-sex
couples, there's a threat of harm to members of the clergy. (Misdemeanor is
based on the fact that it's illegal to marry a couple without having an
official certificate, and same-sex couples will never get an official
certificate, ergo misdemeanor.)
What makes this case particularly interesting is the free exercise
argument, which seems to be virtually (or at least politically) unbeatable.
I can imagine a scenario where conservative churches bring their Bibles to
the debate to argue that their version of the sacrament of marriage is
correct, while progressive churches do the same thing, and the court is
asked to decide whether one version of the sacrament is incorrect and shall
not be practiced under pain of misdemeanor charges for the offending clergy
member. Or perhaps the court could cover the entire issue with a
majoritarian overlay and claim that the voter-passed Amendment One trumps
all competing claims, including free exercise claims.
It reminds me of the California Supreme Court case that ended bans on
interracial marriage (Perez v. Sharp -
http://www.stanford.edu/~mrosenfe/Perez_v_Sharp_CA_1948.pdf). In Perez,
the petitioners argued that the state law violated their free exercise
rights as Catholics by denying them the right to participate fully in the
sacraments of their religion. In this case, the UCC can argue that the
state law violates their free exercise rights by denying same-sex couples
(and the clergy who want to marry them) the right to participate fully in
the sacraments of their religion.
Is there any way that NC's Amendment One can survive this litigation? What
arguments could possibly be used to defeat UCC that aren't completely
frightening?
Michael Peabody
Editor
http://www.ReligiousLiberty.TV
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