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Tuesday, April 29, 2014

Marriage, religion, and good (and bad) arguments

A § 1983 action was filed Monday in the Western District of North Carolina, challenging North Carolina's prohibition on marriage equality. What is interesting here is that the plaintiffs include the General Synod of the United Church of Christ and a number of clergy of different faiths; they argue that state law violates Free Exercise by prohibiting them, under penalty of criminal prosecution, from performing religious same-sex marriage ceremonies that their religious teaching approves.

Proponents of marriage equality have responded to religious objections by emphasizing the difference between secular and religious marriage--that requiring the state to recognize same-sex marriages (under the Fourteenth Amendment) does not obligate religious institutions to recognize or solemnize those marriages, to the extent it would contradict that religion's teaching. The plaintiffs here allege the opposite--that North Carolina, in prohibiting same-sex secular marriages, is prohibiting religious institutions from recognizing or solemnizing same-sex marriages where it is consistent with that religion's teaching.

While state legislatures enact a lot of blatantly unconstitutional laws, a law imposing criminal sanctions on clergy performing a sacrament seems way beyond the pale. But is that really what is going on here?

Paragraphs 91a and 91b of the Complaint quote the relevant statutory provisions, which refer to any "minister, officer, or other person authorized to solemnize a marriage under the laws of this State" performing a marriage for a couple that does not present a valid marriage license (presumably a different provision prohibits issuance of a marriage license to a same-sex couple). It seems to me the appropriate reading of that language is that it only prohibits ministers and others from performing a marriage ceremony that requires a license from the state--in other words, a secular marriage that would be recognized by and binding in the state.  But that does not extend to purely religious marriages--I do not need a marriage license from the state to obtain a Jewish marriage, only a ketubah. In addition, the language "minister, officer, or other person" includes clergy as well as non-clergy who perform only secular marriages (judges, notary publics). This suggests that the prohibition is on performing secular marriages, not religious ones, since secular marriages are the only things the people listed in the statute have in common. On this reading, there is no First Amendment problem, because state law does not, in fact, prohibit clergy from engaging in any purely religious ceremonies or otherwise prohibit anyone from practicing their religion.

Alternatively, perhaps the church and clergy plaintiffs are arguing that the state is unconstitutionally depriving these religious ceremonies of legal effect, meaning the state must recognize any marriage performed by clergy whose religion would recognize that marriage. But that seems such an obvious Establishment problem. And ¶ 106 states the claim as clergy being "prohibited under threat of criminal prosecution from performing any such religious ceremonies" and congregants being "prohibited from becoming married in the tradition of their respective faiths," all suggesting that it is only the religious element being challenged here.

So why raise this claim? Well, it allowed at least one commentator to seize on the case and rail about religious hypocrisy, so there is a political and rhetorical benefit. But when there are (in my, and every lower court's, opinions) so many good arguments to make as to why these laws violate the Fourteenth Amendment, why reach out for a bad one based on an unrealistic statutory reading?

Update: The point of this post was to consider the constitutional validity of one particular claim in this lawsuit. It was not to have a debate about theology and whether SSM is consistent with the will of god, a debate I am not competentto have here. There are many internet fora for such discussions; this post is not one of them. Please refrain from posting comments arguing such issues. I will continue removing them, which gets old quickly. At some point I simply will have to close comments, which I hate to do, since there are many relevant points to be made on the actual subject of the post.

Posted by Howard Wasserman on April 29, 2014 at 09:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink


I am not questioning the use of litigation to promote causes, provided that there is an actual legal dispute because rights of that cause are being infringed. As I read the statutes at issue, that is not what is going on here. This is not about rights that have no chance in court because the court isn't recognizing those rights; this is about gay rights existing, but not actually being infringed by the laws at issue.

An admittedly extreme example: The government prohibiting me from operating a commercial bakery from out of my home in a residential neighborhood does not violate my religious liberty to bake and eat one challah in my house on Shabbat. And it would be inappropriate use of litigation to bring that claim just so I can speak out about the rights of Jewish people to practice their religion.

Posted by: Howard Wasserman | May 2, 2014 1:33:40 PM

Joe, clearly my comment was removed, but this does not change the fact that one cannot claim to be protecting one's inherent, unalienable right to Religious Liberty while denying God simultaneously.

Posted by: N.D. | May 2, 2014 1:00:40 PM

[My last comment is in response to a comment that might have been removed]

"That's not what litigation is for."

That might be your opinion, but use of litigation partially (and that is all I'm saying) to promote a certain cause beyond the specific interests of the parties is a traditional thing. For years, e.g., gay rights had no chance in court, but litigation provided in part a chance to put forth their claims and put a human face on things. It was a specific sort of petition of the government to redress grievances.

The claim referenced might be weak, but it is not so shoddy that some minimum "colorable argument" test is met making it merely a waste of the court's time. That being the case, use of the case ALSO to promote a cause, as is standard public interest litigation technique, is not a 'waste of time' either for the parties or for that matter, in the context of normal practice at least, particularly for the court either.

I'm not even 100% sure they are wrong on the point, which underlines they are not merely 'wasting' time here. One recent report, e.g., on Gay USA (a weekly news show) suggested the law inhibited the practice of local ministers. This is a factual question that I'd need more evidence before I can judge it.

Posted by: Joe | May 2, 2014 12:51:59 PM

N.D., the First Amendment includes the right to "deny God."

This might or might not result in damnation, but in a legal sense, even if I agreed with the former pope, don't understand how your comment works.

Posted by: Joe | May 2, 2014 10:50:46 AM

You're missing the point of my original argument. I'm not saying that there is not a First Amendment right to religiously recognize same-sex marriages where the tenets of the religion allow; of course there is. I'm saying the argument doesn't work here because the state law does not prohibit clergy from engaging in any religious practices. So whether or not there is a right here, it is not being violated by the law in question.

Posted by: Howard Wasserman | Apr 30, 2014 3:02:03 PM

So, rights claimants should never assert multiple arguments, some of which have lower probabilities of success than others? Isn't that very strategy central to doctrinal development? What seems absurd today may well be the winning argument in the future. In fact, the first marriage equality decision in Hawaii was based on the very controversial (and internally divisive) claim of sex rather than sexual orientation discrimination, which many academic critics had viewed as absurd at the time. Subsequent courts have mainly rejected but almost all plaintiffs now plead it as an alternative claim because some courts may well find it convincing. Seems like a perfectly valid legal strategy to me so I don't grok your concern.

Posted by: etseq | Apr 30, 2014 2:49:08 PM

I was not professing an aesthetic preference (not sure what my being an academic has to do with it), but a legal opinion about the non-meritoriousness of a legal claim. And I don't actually see the ambiguity.

Posted by: Howard Wasserman | Apr 30, 2014 2:31:29 PM

Also, you seem to have a very naive, functionalist view of the purpose of litigation but even under your view, the UCC ministers certainly have colorable claim under their reading of the statutes so its up to the courts to decide whose construction of the law is correct. You seem to view this case as some how so frivolous that it is unethical to even bring it but many others, including their well respected lawyers, disagree.

Posted by: etseq | Apr 30, 2014 2:31:15 PM

Since when do gay people have to tailor their legal and political strategies satisfy what amounts to your academic aesthetic preference? Rights litigation often involves making multiple claims in one lawsuit - some better than others - but as long as the claim is at least plausible, where is the harm? You may be correct that your construction of the laws is correct but clearly there is an ambiguity here and since UCC ministers are potentially subject to criminal fines, I see no reason to belittle their concerns and legal strategy.
That "commenter" you chastised for "railing" against "religious hypocrisy" is a gay man like myself who might actually, you know, have some real life experience related to having right wing religious groups invoking religious liberty to strip us of our legal and political rights. So, I am not sure why you seem more indignant about his perfectly valid political analysis rather than specious and borderline unethical religious "liberty" claims made by the right wing christians and their academic enablers, such as Laycock, Berg, etc.

Posted by: etseq | Apr 30, 2014 2:22:07 PM

"A special type of "public forum" that can include testimony (with the resulting media attention etc.) showing how religious groups also support SSM."

That's not what litigation is for. In the absence of a colorable legal claim, any testimony about religious groups supporting SSM is irrelevant and inappropriate. Since you don't have a First Amendment right to have your religious beliefs instantiated in the law, any "religious liberty" component to the SSM right is satisfied so long as someone can be married within the tenets of their fath. And, realistically read, North Carolina laws don't prohibit that.

Posted by: Howard Wasserman | Apr 29, 2014 7:33:12 PM

I think marriage rights include a "religious liberty" component in some respect as well as a 1A freedom of association component (as expressed in Griswold v. CT) overall, so would not phrase it that broadly. But, I agree the specific claim is weak.

The text of the statute does lead to some confusion there. And, it is merely part of a lawsuit that provides a chance for a religious denomination on its own behalf to support SSM rights. A special type of "public forum" that can include testimony (with the resulting media attention etc.) showing how religious groups also support SSM. It doesn't seem much of a "waste of time" as a whole.

JHW, duly noted, but the point of the lawsuit as a whole is to make a comprehensive effort -- with various parts -- particularly tied to religious belief and practice. The equal protection and liberty arguments are by now standards but here are put in a certain context with a special overall religious message being made.

I don't know the nature of the other claim referenced, but the effort here is not merely redundant.

Posted by: Joe | Apr 29, 2014 7:17:32 PM

But if their statutory reading is correct, there is no reason to think it wouldn't be enforced. Courts tend to be somewhat forgiving on this with a new law. It's only when there some history of non-enforcement that a court will find no credible threat.

Posted by: Howard Wasserman | Apr 29, 2014 12:11:43 PM

Howard Wasserman: Don't they need a credible threat of enforcement to bring a pre-enforcement challenge?

Posted by: JHW | Apr 29, 2014 11:58:10 AM

JHW: If their statutory interpretation were right, they would have standing as to Count I, both because the clergy are the ones targeted with punishment and on a church-freedom type claim (a minister has as much First Amendment right to perform and celebrate a religious marriage as the couple has to be married).

Posted by: Howard Wasserman | Apr 29, 2014 10:55:44 AM

Joe: Note that the due process and equal protection claims (Count III and Count IV) are on behalf of the same-sex couple plaintiffs, not UCC or the various clergy. So those parts of the complaint look just like all the other same-sex marriage lawsuits, and there's already at least one other in North Carolina.

I think it is perhaps arguable that the quoted NC statutory provisions could be read to cover religious same-sex marriages, but I highly doubt that there is any real prospect of enforcement as applied to a marriage that everyone involved understands has no legal force. I don't see how the clergy have standing to make that claim, even if their statutory interpretation is right.

Posted by: JHW | Apr 29, 2014 10:42:10 AM

I am great with churches and clergy entering the conversation about marriage equality and showing that the religious argument is not uni-directional. Those are great arguments to make in the public forum. And may even be worthy evidence against the anti-SSM religious arguments. The church and clergy here are arguing that their religious liberty is being abridged by a state law. And that simply is not true.

And I recognize the merits of the general liberty and E/P arguments, which almost certainly will prevail. Which is precisely why I see the First Amendment argument, which lacks merit, as such a waste of time.

Posted by: Howard Wasserman | Apr 29, 2014 10:36:22 AM

I'm inclined to agree that the lawsuit is based on an "unrealistic statutory reading" -- with the right amount of due care that I only quickly skimmed the complaint.

But, the (to me) dismissive comment about people having a chance to "seize on the case and rail" is a bit much. There is hypocrisy here or at least confusion. Repeatedly, it has been argued that same sex marriage being recognized in a secular sense will interfere with religious freedom (unlike, e.g., divorced people re-marrying not getting anywhere that much attention). The case here reminds that many people have religious beliefs that support same sex marriage and recognition will help them too.

Not a trivial concern and if a "unrealistic" reading is used to help promote the cause, this is far from unusual in litigation -- see also some of the ACA litigation. Also, it is useful to note that the dubious free exercise argument is only part of the case. The case also relies on general liberty to marry arguments, here put forth by a religious group. They are a natural party to do that -- a religious group, e.g., supported the couple in the Perez v. Sharp interracial marriage case.

Posted by: Joe | Apr 29, 2014 10:26:55 AM

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