The headline on a column in Slate by Mark Joseph Stern is arresting: "Religious Liberty Hypocrisy: North Carolina Forbids Churches From Performing Gay Weddings."
Stern goes on to write: "Under North Carolina law, a minister who officiates [at] a marriage ceremony between a couple with no valid marriage license is guilty of a Class A misdemeanor and can be thrown in jail for 45 days. And since gay marriage is illegal in North Carolina, that means any minister who dares celebrate a gay union in his church may face jail time."
Maybe, maybe not.
Stern was responding to a lawsuit filed in federal court by the General Synod of the United Church of Christ, a liberal denomination, several clergy members and same-sex couples who would like to be married in religious rites.
In addition to challenging North Carolina's ban on same-sex marriage as a violation of equal protection, the suit argues that the state's marriage laws violate the 1st Amendment rights of clergy and the free exercise of religion. Given complaints by Christian conservatives about how the gay rights movement threatens religious liberty, that assertion exudes irony.
But is North Carolina really threatening to arrest ministers for uniting same-sex couples "in the sight of God and this congregation"? The ministers who brought the lawsuit may fear prosecution, but it seems that none has been arrested by agents of Caesar. And it's not clear that the law contemplates any such action.
Here's the relevant language: "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 … 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." Since North Carolina doesn't issue marriage licenses to same-sex couples, one can argue that this means ministers can't officiate at even religious same-sex weddings.
But the key phrase is "authorized to solemnize a marriage under the laws of this state." That's another way of saying "authorized to solemnize a civil marriage." Like other states, North Carolina provides for one-stop shopping: The minister, priest or rabbi who marries the couple in the Lord's eyes also acts as an adjunct of the state in completing the paperwork for a civil marriage. But the two sorts of marriage are still distinct.
For example, if a couple is married by a Roman Catholic priest, they can end their civil marriage with a divorce even though their religious marriage is indissoluble in the eyes of the church. On the other hand, a sacramental marriage can be effected by the couple's consent before a priest even without a piece of paper from city hall.
It seems to me that North Carolina's law applies only to marriages performed by clergy members in their capacities as agents of the state. If a minister makes it clear that the ceremony is strictly a religious one, he's home free. If some runaway DA pursued a prosecution in those circumstances anyway, it's hard to imagine it would survive a 1st Amendment challenge. The government doesn't get to define sacraments.
What I find interesting about this lawsuit is that it seeks equality in both religious and civil marriage, and doesn't rail against commingling the two (so long as same-sex couples are included in the union of church and state). That's a departure from the insistence by some advocates of marriage equality that civil marriage is not the same as religious marriage. The arguments for gay marriage in the eyes of the state and the eyes of God are now marching up the aisle together.