Do North Carolina's Marriage Laws Violate Religious Freedom?

Jennifer and Renee met in college. They have maintained a monogamous relationship for many years, settled in the same city, have lived together and made a life together. They recently found a church in the city in North Carolina where they live which welcomed them as full members of their church and they have become active in their church's life. Recently, they decided that they wanted to solemnize their relationship and have their minister perform a wedding ceremony in their new church. They knew it was not legal for them to get married in North Carolina, but they wanted to have the ceremony nonetheless. They spoke with their minister and he had some hesitation. "You know, I can't perform a marriage ceremony without a marriage license and you can't get one of those in North Carolina," said the minister.

Undaunted, they went to their register of deeds and applied for a marriage license and were of course denied. They returned to their minister and after much thought and prayer, he decided that he would go ahead and perform the ceremony. "What harm could it do," he thought, "it's not a legal marriage, but I want you two to feel like you are full and equal members of our church community as we all consider you to be."

The ceremony was quite the event and even got coverage from the local media.

The next day, however, the minister found himself under arrest and facing a fine and possible imprisonment for performing the ceremony.

Sound far fetched? Well, under North Carolina law the above scenario appears to be quite possible.

And I'm not even talking about the wrong-headed and unnecessary constitutional amendment that the religious right came up with to try to spur turnout to the polls. I'm talking about the regular, old, run of the mill North Carolina statutes that cover the process that one has to go through to get married.

North Carolina's marriage laws are quite antiquated and painfully heterosexual. They are contained in Chapter 51 of the General Statutes.

According to North Carolina General Statute (NCGS) Chapter 51-1 the requisites for a marriage are as follows:
A valid and sufficient marriage is created by the consent of a male and female person who may lawfully marry, presently to take each other as husband and wife, freely, seriously and plainly expressed by each in the presence of the other, either:
(1)  a.  In the presence of an ordained minister of any religious denomination, a minister authorized by a church, or a magistrate; and
      b.  With the consequent declaration by the minister or magistrate that the persons are husband and wife; or
(2) In accordance with any mode of solemnization recognized by any religious denomination, or federally or State recognized Indian Nation or Tribe.

So, let's look at that first statute a bit. We know that it's only for boys and girls, not boys and boys or girls and girls. You have to be serious (No Elvis impersonators here!). And the only persons who can perform a marriage are a magistrate, an ordained minister, or an Indian Chief. OK. Sounds fairly innocuous.

The next section 51-1.2 states that marriages between persons of the same gender (interesting use of the wrong term -- I think they meant sex), even if performed in other states, are not valid in North Carolina. You know, for those for whom that whole thing in the preceding section about being between a man and a woman wasn't clear.

Of course, if those two sections still weren't quite clear enough, the Amendment to the state constitution stating that a marriage between one man and one woman is the only yadda, yadda, yadda...OK, we get it. The State really doesn't like gay people. Enough, already! (Except of course, that a lot of us do, but that's beside the point).

It starts to get a little bit dicey, though when you look further down in the statutes. Section 51-6 states that a Solemnization without a license is unlawful. "No minister, officer, or any other person authorized to solmnize a marriage under the laws of this State shall perform a ceremony of marriage between a man and woman, or shall declare them to be husband and wife, until there is delivered to that person a license for the marriage of the said persons, signed by the register of deeds of the county in which the marriage license was issued or by a lawful deputy or assistant." OK, those of us who have read the constitution are starting to get a little uncomfortable now.

If that wasn't bad enough, the next section, 51-7, makes doing so a criminal offense. "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."

WHOA, NELLY!!!!!! HOOOOOOOOLD EVERYTHING RIGHT THERE, MISTER!!!!!!!!!!!!!!

The First Amendment of the United States Constitution says in its very first sentence "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Usually government intrusions into religion arguably violate the first clause -- the establishment clause -- as they seem to be an attempt to write into law the beliefs of one religion at the expense of others. But North Carolina's marriage laws seem to violate the second clause -- the free exercise clause.

Many religions accept and celebrate gay, lesbian, bi-sexual and transgendered members and clergy. Three mainstream protestant religions in America, the Episcopal Church, the Evangelical Lutheran Church of America, and the Presbyterian Church (USA), now accept openly gay members and clergy. Along with this many Jewish congregations along with Unitarians and various other denominations recognize and accept gay members and celebrants. Along with this, in the States where it is legal, many of these religious congregations also perform same sex marriages as part of their beliefs.

But what if a minister of any of these, or any other religion wants to perform a ceremony for their members, even though it won't have any legal affect, simply because they want to celebrate and solemnize for their own religious purposes their members relationship, commitment and love for one another and recognize their relationship as being equal to the heterosexual members of their congregation and in the eyes of God as they believe? What right does the government have not only to tell a minister that he or she doesn't have the right to do this, but that if they do, they can go to jail and have a criminal record?

This certainly gives support to the Libertarian argument that the State has no business in marriage to begin with. They argue that marriages should be left to the realm of religion and not be a matter for the State at all. Of course, this would never happen because if it did, then same-sex marriage would be legal everywhere (which I would add would be fine for most Libertarians, the Paul family notwithstanding).

Look, I'm fine with the State of North Carolina saying that for a marriage to be recognized by the State and for the couples who want to have the legal protections that the State grants to married couples that they have to follow the statutes set forth (actually, I'm not fine with it, but I think they have a right to do so). But where I think North Carolina crosses the line is dictating to religious leaders how and to whom they can grant the blessings of their church, and in many, if not most religions, marriage is one of the major blessings that a church can bestow on its members. To deny this fundamental right to religions in our state, and even criminalize the performing of a ceremony outside of the dictates of the State, I believe is a clear violation of the prohibitions set forth in the free exercise clause of the First Amendment.

I'd love to see this put to the test. It certainly would cause some consternation among the anti-gay citizens of our great state and that is always a good thing. I'd love to hear the thoughts of others on this subject and whether or not you agree with my analysis of this issue.

Thanks again for taking the time to read and discuss this.