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North Carolina's New Gay Marriage Lawsuit Could Turn 'Everything On Its Head'
An unusual lawsuit in North Carolina is shifting the
conversation about religious freedom -- and could be driving a wedge
between some major opponents of same-sex marriage.
Clergy from the
United Church of Christ, a liberal denomination that has allowed
pastors across the U.S. to officiate at gay weddings since 2005, filed
suit in a North Carolina district court Monday, becoming the latest in a
nationwide series of cases against a state's same-sex marriage ban.
Like dozens of similar lawsuits filed across the country, the North
Carolina suit argues that the state's ban violates gay couples'
constitutional right to equal protection. But in a unique twist, the
suit adds that the ban also violates the First Amendment right of
members of the clergy to practice their faith -- because the state's ban
criminalizes pastors who bless same-sex unions, leaving clergy open to
arrest.
That's a cause that's gaining unexpected support.
Albert
Mohler, president of the Southern Baptist Theological Seminary,
declared Tuesday that North Carolina's ban is "dubious and dangerous."
And while Mohler has not changed his opposition to same-sex marriage --
he once equated homosexuality with cancer -- he did concede that the UCC clergy's lawsuit is "very convincing."
"It
puts those of us who advocate both for marriage as the union of a man
and a woman and for religious liberty, including the liberty of
Christians to hold fast to a Christian and biblical understanding of
marriage, in a very difficult position," said Mohler in a podcast Tuesday.
Legal
experts say that North Carolina's criminalization of clergy for
blessing a same-sex union is unique and not typically found in other
states where same-sex marriage is banned. Jake Sussman, a leading lawyer
for the plaintiffs, said that he is not aware of any clergy who have
been arrested. However, he added, the lawsuit names the state's attorney
general and several district attorneys as defendants because such a
prosecution would be "well within their power and discretion."
Eric
Teetsel, director of the Manhattan Declaration, a prominent anti-gay
marriage group founded by the late evangelical leader Chuck Colson, said
the plaintiffs' case may not be as strong as they think.
"From my
understanding, [the clergy] are not being prevented from performing
their religious services," said Teetsel. "That said, if there was a law
that denied UCC or any church from conducting a purely religious
ceremony, I would be against it. The right to religious freedom and free
exercise is so important that we have to defend it even in instances
where people are doing things we disagree with."
Experts say the
lawsuit may reflect a shift in the fight over gay rights, noting that
opponents of same-sex marriage have lately been arguing more and more
that allowing gay couples to wed threatens the religious freedom of both
clergy and business owners who believe their faith opposes it.
"It turns everything on its head," Randall Balmer, a professor of American religious history at Dartmouth College and author of First Freedom: The Fight for Religious Liberty, said of the suit.
Not all religious conservatives are buying the argument.
"I'm
not sure if this is a religious freedom claim or a publicity stunt,"
said Russell Moore, president of the Ethics and Religious Liberty
Commission of the Southern Baptist Convention, which has been one of the
loudest religious voices against gay marriage. "This isn't the
institutionalization of one particular religious viewpoint, but an idea
that virtually every civilization has defined as being between one man
and one woman."
Moore, along with other religious conservatives,
argued that when it comes to recent laws regulating same-sex marriage,
religious liberty is a right that should be reserved for those who
disagree with gay marriage.
"Religious liberty is something
different," said Moore. "It's when there is an infringement that happens
on people's right to dissent to same-sex marriages. We are concerned
with people being forced to participate in those ceremonies, which we
see with cases of florists, photographers and others across the
country."
Tami Fitzgerald, director of the North Carolina Values
Coalition, the group that led the charge to pass the state's ban on
same-sex marriage, echoed Moore's sentiments, saying the beliefs of the
clergy from the United Church of Christ are "errant."
"These
individuals are simply revisionists that distort the teaching of
Scripture to justify sexual revolution, not marital sanctity,"
Fitzgerald said in a statement.
The North Carolina clergy disagree.
"As
a Christian minister in a Christian church that supports same-gender
marriage, I should be religiously free to offer my services as a
minister performing a wedding for a couple in my congregation," said
Rev. Nancy Ellett Allison, a United Church of Christ plaintiff in the
case, which also includes a dozen non-UCC clergy and same-sex couples.
Religious
conservatives have long argued that they should be exempt from a range
of laws because of their beliefs, most notably regarding the contraception mandate
in Obamacare that's at the center of two religious freedom cases the
U.S. Supreme Court is expected to rule on in June. In recent years,
opponents of same-sex marriage have been also increasingly focused on
religious freedom.
In New Mexico, Colorado and Washington state, religious business owners have lost lawsuits
over whether the anti-discrimination laws have caused people such as
florists, photographers and bakers to break the law if they decline to
serve customers whose same-sex marriages they view as immoral.
In
February, after a national uproar from gay rights supporters, Arizona
Gov. Jan Brewer vetoed a proposed law that would have made it legal for
business owners to deny services to same-sex couples based on religious
objections.
But despite setbacks, opponents of same-sex marriage
persist in their efforts. "Dear Marriage Supporter, Can you envision a
future in which your support of marriage deprives you of your job...of
your business...of your liberty?" began a fundraising message from the National Organization for Marriage, a leading group opposing same-sex marriage, earlier this month.
Katherine Franke, a professor at Columbia Law School who recently helped launch a project to research
the increased use of religious exemption claims in courts, sees this
trend as evidence of the momentum of the gay rights movement.
"This
is plan B," she said. "Plan A was defeating the same-sex marriage
movement in the courts and legislatures, and they've lost that battle.
So Plan B is to turn to religion: You can have your laws, they just
don't apply to me."
It's not yet clear how the North Carolina
case will ultimately affect the debate over religious liberty. Some
same-sex marriage opponents may support the case, Franke said, because
it could help their long-term goals. "They're interested in robust
interpretations of the First Amendment," she said.
Indeed, in his podcast, Mohler urged listeners to take the long view.
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