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Friday, May 02, 2014

Churches and marriage equality, ctd.

Chanakya Sethi at Slate reads the North Carolina anti-SSM stautes the same way I did -- as prohibiting civil ceremonies, not purely religious ones having no civil effect -- as do an expert on North Carolina family law and religious law scholar Doug Laycock.

Posted by Howard Wasserman on May 2, 2014 at 08:18 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink


Etseq, that's the problem with 'religious freedom' which in practice means exemptions for right-wingers.

Posted by: Barry | May 13, 2014 7:54:18 AM

It just fits a pattern with Laycock where he wants to claim support for gay rights but all of his work revolves around maximalist exemptions that makes those rights hollow. The media always portray him as some objective expert who dutifully confirms that gay rights, unlike other minorities, must be limited by religious objections.

Posted by: etseq | May 5, 2014 5:26:03 PM

From what I can tell, the anti-SSM stuff was interpolated into a set of existing restrictions. Assuming that the prohibition has been on the books for some time, it may well have been part of the anti-miscegenation regime, and therefore intended to cover purely religious ceremonies as well as other things.

I would think Reynolds v. United States, 98 U.S. 145, answers the basic question about the constitutionality of such restrictions. Since there was no doubt that the law would not recognize a bigamous second marriage, the issue, at least practically, was whether a religious marriage ceremony standing alone could be criminally punished. The Court unanimously rejected a free exercise defense. Similarly, the Court rejected a challenge to a conviction of a minister for advertising his availability to perform marriages, contrary to the laws of the state. Maryland v. Hopkins, 339 U.S. 940 (1950), dismissing appeal of 69 A.2d 456 (Md. 1949). If, because marriage is a contract, the state can regulate the religious performance of perfectly valid marriages, I would think that the state can discourage the performance of invalid marriages. This is particularly so during a time when fornication, sodomy and miscegenation laws meant that there was a direct connection between the marriage ceremony, religious, civil or otherwise, and criminal conduct.

To be clear, my view is that these cases were wrongly decided and the laws are unconstitutional for the reasons you state (among others). But in trying to ascertain the intent of an old southern law, I think they may well be excellent evidence.

Posted by: Jack | May 4, 2014 5:44:32 PM

What level of "informal" advice provides an ethical obligation that the person not talk with the media? He is not the plaintiff's lawyer. A professor in fact can informally provide BOTH side advice.

I see no particular problem with that unless he exposes protected conversations or has "formal" obligations. I doubt that everyone a side obtains advice from is supposed to keep quiet from the media if their comments, including providing a talking head opinion on a matter, would hurt the side's case. The word "informal" is telling here, isn't it?

Posted by: Joe | May 4, 2014 3:27:22 PM

I know Laycock is well respected authority by many, which is reflected by the fact that he is quoted in virtually every news story related to religious liberty but I find it odd, even troubling, that he is a named source arguing against the Church's position - he is identified as someone who "informally advised the church’s lawyers" Does advising a client, even "informally" give rise to an ethical duty of loyalty to not give statements or interviews to the media that contradicts or undermines that client's theory of the case? Even if there are no binding ethical rules, I think its pretty bad form and I am sure the UCC and its lawyers never anticipated Laycock undermining their case in the media when they consulted with him.

Posted by: etseq | May 4, 2014 12:40:34 AM

That sounds reasonable enough. Note that the clergy are cited as honestly concerned about the text* and that the lawyers for them appear to honestly of the opinion that there is at least a "colorable" claim that they have reason enough to be to make a case. Also, Laycock noted:

“The state ought to be upfront about that,” he told me, “and that would be a sort of a win for the church”—and a win for the state too, because the statute would stand. Martel demurred when I asked him about this. “We’ll address that if and when the AG takes that position,” he said.

So, by bringing the lawsuit, they will (1) bring a general claim in support of same sex marriage that specifically includes a religious freedom angle (2) also address the concerns of some clergy by means of a state announcement.

They might do so by raising a weak claim but it is not a "waste of time." The article suggests this might be a double-edged sword for the pro-SSM side, but that is debatable. It seems to me a way to help the overall idea that personal views of marriage are different from secular marriage. And, the case has the two threads, so the state "winning" on one doesn't mean they win overall.

And, UCC's legal argument is not that only their view of marriage is correct -- the UCC isn't trying to have the state establish their view of marriage. Their claim, misguided or not, is that the law interferes with their ability to "solemnize" weddings. If some church is against them (or divorced people re-marrying) they can choose not to.

* The talk about prosecution seems to me overblown overall. State law has a range of marriage laws and seldom except in blatant cases will anyone be "prosecuted" if it is violated. The literal language still might trouble someone especially if they do not want to violate what seems to them what the law means. I still would like to know a bit more about this 'fear' of the clergy. Is it based on ANY reasonable grounds? A statement from a member of the affected clergy would be useful.

Posted by: Joe | May 3, 2014 1:51:19 PM

The New York case you cited (which may not have been legally correct, at least at the time) is besides the point here, since it involved an attempt to create a civil marriage. The mayor was challenging the licensing requirement as violating Equal Protection because it prohibited *state-recognized* same-sex marriages. I suppose the clergy in the North Carolina case could challenge the overall ban on SSM in a similar way, although there would be some tricky third-party standing issues, at least in federal court.

As for polygamy, were clergy prosecuted for consecrating the subsequent "marriages"? I was under the impression that it was enforced by prosecuting couples for co-habitating (as with the Utah law struck down a few months ago).

Posted by: Howard Wasserman | May 3, 2014 10:56:41 AM

I see the point but that is a quite modern view. The older cases--2004--find statutes inapplicable because they are unconstitutional, not because they do not apply to weddings with no legal, civil effect. E.g., 780 N.Y.S.2d 723. If the North Carolina statute was enacted in the period when polygamous "marriages" were permissibly criminalized notwithstanding the fact that the 2d and subsequence ceremonies were "religious only" it might well be fair to read it broadly.

Posted by: Jack | May 3, 2014 4:01:06 AM

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