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The flip side of the religious freedom argument

We have seen many examples recently of religious people claiming that their religious freedoms are being violated because they cannot practice discrimination or they wish to avoid complying with laws that they object to. But now comes a curious reversal in which religious people are suing because they are being prevented from being inclusive and accepting

The United Church of Christ, headquartered in Cleveland, has long been one of the most progressive of mainstream churches, being the first in 1972 to ordain an openly gay pastor and then in 2005 endorsing the call for same-sex couples to contract civil marriages, long before that movement gained the momentum it has now.

It is now suing the state of North Carolina over its constitutional ban on same-sex marriage, saying that the amendment passed in 2012 violates the religious freedom of its clergy.

As part of the state ban, it is a Class 1 misdemeanor for a minister to perform a marriage ceremony for a couple that hasn’t obtained a civil marriage license. In addition, the law allows anyone to sue the minister who performs a marriage ceremony without a license.

The church’s leadership held a press conference yesterday announcing the lawsuit.

The Rev. Dr. Bernard Wilson, chairman of the UCC’s board of directors, said the law is unconstitutional because it criminalizes ministers for performing their religious duties, and restricts residents from the free exercise of religion – a principle upon which the UCC was built.

It is really quite extraordinary that the state of North Carolina not only will not provide equal access to marriage, they would actually ban people from conducting any kind of religious ceremony associated with it even if it has no legal consequences.

Comments

  1. astrosmash says

    actually this is great news. I was wondering when this was gonna happen. There’s no way the discrimination can stand now especially since the progressive Episcopalians and Methodists wil be next in line to bring suits against states where same sex marriage is still illegal. The whole ‘religious objection falls flat in the face of this…Plus, the Episcopalians and Methodists have been around considerably longer than many of the fundamentalist and right wing evangelists have…

  2. says

    It is really quite extraordinary that the state of North Carolina not only will not provide equal access to marriage, they would actually ban people from conducting any kind of religious ceremony associated with it even if it has no legal consequences.

    Indeed! When I first heard this yesterday, the article I read did not make this clear. I figured they were complaining that they couldn’t file paperwork that they could with any other marriage, and such a case should be quickly laughed out of court.

    But other articles I read today were more clear on this. That’s disturbing. Though, I’m not fully surprised considering the source. I expect nothing less than hypocrisy from people who would enact such bans. busterggi @1 states why.

  3. says

    @2 astrosmash

    No, I think what you’re probably thinking about isn’t going to happen. As Mano points out, this “actually bans people from conducting any kind of religious ceremony associated with it even if it has no legal consequences.” There’s no valid religious freedom argument that could remove the entire bans. I.e, if a State does not allow for a gay marriage to have any legal consequences but does allow for such ceremonies to be held, that in no way violates religious freedom. NC is in trouble here for going above and beyond by having legal consequences for mere ceremonies.

    What will likely happen, though, is public opinion will keep shifting enough that the voters will have enough sway to get these bans overturned. That’s been happening, though, so this changes nothing from that front.

  4. Reginald Selkirk says

    I see a couple other commenters have already picked up on the crucial point: there is a distinction between marriage as recognized by a church and marriage as recognized by the state. Some religions allow ceremonies which have no legal bearing. Examples:
    1) You may have seen recent news articles about Orthodox Jewish sects which require their own divorce decree, a “get” before a person can remarry and stay within the sect. This decree is entirely separate from a legalyl binding state-issued divorce.
    2) Some Protestant sects perform “covenant marriages” in which a couple, who may have been legally married for years, re-affirm their vows before the church.

    This crucial point leaves room for a partial victory, in which the courts could decide that the amendment is wrong to outlaw such non-sanctioned ceremonies, without striking down the whole thing.

  5. dukeofomnium says

    I think that the other key here might be that UCC ministers are permitted to marry gay couples … if those couples have licenses issued by the official in charge of issuing such things. The act of discrimination actually occurs against the couples not the church; and is perpetrated by the county clerk (or whomever that official is).

    It’s a great try, turning the religious freedom argument on its head, but I don’t think it’s going to work.

  6. Mano Singham says

    dukeofomnium,

    Actually, I think the UCC has a great case.

    The state is going to be challenged on RFRA that puts the burden on the government and prevents it from enacting any laws that imposes a ‘substantial burden’ on the exercise of religion unless it serves a compelling government interest and there is no less restrictive option available to achieve that same purpose.

    The compelling interest one is the problem for the state. Same-sex marriages are already banned even if the church conducts a service. What is the compelling interest served by additionally forbidding the UCC from carrying out such a service?

  7. Crimson Clupeidae says

    I’m gonna pop me some popcorn and watch all the right wing fundy heads assplode over this case.

    Mano, have you seen any right wing sites commenting/covering this story? I’d love to see the mental contortions this puts them through (but not enough to wade into the swamps myself, mind you!).

  8. Crip Dyke, Right Reverend Feminist FuckToy of Death & Her Handmaiden says

    I think that the other key here might be that UCC ministers are permitted to marry gay couples … if those couples have licenses issued by the official in charge of issuing such things. The act of discrimination actually occurs against the couples not the church; and is perpetrated by the county clerk (or whomever that official is).

    It’s a great try, turning the religious freedom argument on its head, but I don’t think it’s going to work.

    Exactly.

    There’s no discrimination against religion merely because a church cannot perform a religious ceremony without first having its parishioners get a permit! Licensing requirements on religious ceremonies happen all the time! Hell, in 48 states, DC, Puerto Rico and Guam an RCC priest can’t give communion to someone unless the parishioner shows a government certified permit to transubstantiate. There’s no discrimination against the church just because the government is substituting its own judgement on who is eligible for communion with god.

    Who could ever think otherwise?!

  9. Mano Singham says

    Crimson Clupeidae,

    The right wing blogosphere has been somewhat silent on this issue. Groups like NC Coalition for Values have denounced the UCC move without going into why this is not a violation of religious freedom.

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