North Carolinian faith leaders are entering the ring in the fight for marriage equality — but not for the reason you may think.
The United Church of Christ, as well as a coalition of clergy members and gay couples, filed a federal lawsuit Monday seeking to overturn the Tar Heel State’s constitutional ban on same-sex nuptials.
Like dozens of marriage equality suits that have come before, this case — United Church of Christ v. Cooper — cites the constitutional rights to equal protection and due process under the Fourteenth Amendment, currently denied to gay and lesbian couples who wish to marry in North Carolina. But what makes the suit unique is its charge that the state’s marriage law also violates the First Amendment’s guarantee to freedom of religion — something typically used in arguments against LGBT equality, not for it.
Attorney Jake Sussman, who is representing the plaintiffs, says this is the only existing marriage equality case to make a First Amendment claim. It’s also the first case for marriage equality brought by a national religious denomination.
“Members of the faith community who affirm that kind of equality need to have the freedom to perform religious rites within their houses of worship,” said Sussman to msnbc. “Because of the way North Carolina defines marriage, it has a perverse and dangerous effect on the freedom of religion.”
North Carolina is one of 33 states that prohibits gay couples from marrying. In 2012, 61% of the voters approved Amendment 1, which defines marriage as a union between one man and one woman. But Sussman and his team have also found that North Carolina is one of at least 19 states that carries some sort of civil or criminal penalty for those who marry two people without a valid marriage license, which same-sex couples cannot get from the state. That means members of the clergy who perform wedding ceremonies for gay couples do so under the threat of criminal prosecution, the lawsuit states.
“It’s written into the law in North Carolina that faith leaders are deputized to perform marriage ceremonies,” said Sussman. “Because of the way the statute is written, and because there is that sanction, that’s where the constitutional [question] exists.”
Sussman noted that none of the plaintiffs, who come from a variety of churches and religions, have been prosecuted for performing same-sex wedding ceremonies in North Carolina. But that doesn’t mean they can’t be.
“I have been doing marriages for same-gendered couples since 2006,” said the Rev. Nancy Allison, pastor at Holy Covenant United Church of Christ and a plaintiff in the case, to msnbc. “Not until we got involved in this lawsuit did I realize that in doing those services, I was performing an illegal action.”
Nevertheless, said Allison, it’s a law she’s willing to break.
“I can’t imagine the state of North Carolina or the city of Charlotte wasting resources to arrest me,” she said. “But if that were to happen, that’s something I would gladly go to jail for.”
The suit names Democratic Attorney General Roy Cooper as a defendant, along with five registers of deeds. Though a personal supporter of marriage equality, Cooper has kept himself off a growing list of attorneys general refusing to defend their state bans.
In fact, on the same day that the United Church of Christ lawsuit was filed, Cooper issued a staunch defense of his state’s marriage law in a separate federal challenge to Amendment 1 — Fisher-Borne v. Smith. Responding to a request from the plaintiffs for a preliminary injunction and expedited review, Cooper wrote in a brief filed Monday that the potential harm experienced by a lesbian couple seeking health coverage for their child with cerebral palsy is “outweighed by the harm to the public if State officials are enjoined from enforcing the democratically ratified State laws and Constitution.”
Cooper’s public information officer said that the attorney general does not comment on pending litigation. Others were more forthright.
“This is sadly, and predictably, the ‘lawsuit of the week’ filed by those who want to impose same-sex marriage on North Carolina,” said Tami Fitzgerald, executive director of the N.C. Values Coalition and former chair of the pro-Amendment 1 group, Vote for Marriage N.C., in a press release. “Moreover, it’s both ironic and sad that an entire religious denomination and its clergy who purport holding to Christian teachings on marriage would look to the courts to justify their errant beliefs. These individuals are simply revisionists that distort the teaching of Scripture to justify sexual revolution, not marital sanctity.”
Emma Margolin
Emma Margolin is a reporter at MSNBC.com.