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Filed April 28 in federal court in North Carolina, General Synod of the United Church of Christ et al. v. Cooper et al. (pdf) is the first suit to make a religious freedom argument on behalf of marriage equality. Although 65 other marriage equality cases are pending around the nation, they rely on other grounds, such as equal protection and due process. The UCC case also marks the first time a national denomination has filed suit against a state’s marriage laws. Roy Cooper, the North Carolina attorney general who is the named defendant along with several district attorneys and registers of deeds, has not yet responded to the suit.
Plaintiffs in other lawsuits have invoked a defense of religious freedom to support conservative political positions, including business owners who don’t want to serve same-sex couples and employers who resist offering contraceptives to employees through their healthcare plans. In an irony that many commentators have noted, the North Carolina case “takes an issue the religious right has been using a lot and turns it around and says that applies to us as well,” says the Rev. Mark Peters Ward, lead minister of the UU Congregation of Asheville, N.C., and one of the plaintiffs in the suit.
In large part because of its innovative argument, the lawsuit has garnered widespread media attention. (The UCC has launched a sophisticated social media campaign tied to the lawsuit, “I Do Support Religious Freedom.”) The Campaign for Southern Equality, an Asheville-based LGBT rights organization, was the creative force behind the lawsuit, and reached out to local progressive clergy and lawyers for help in seeking to overturn certain laws, particularly Amendment One, passed by voters in 2012, which makes it illegal for the state to recognize or perform same-sex marriages. The Rev. Robin N. Tanner, minister of the Piedmont UU Church in Charlotte, N.C., is the other UU minister named as a plaintiff; other clergy include UCC ministers, a Lutheran minister, a Baptist minister, and a rabbi, along with members of their congregations who hope to marry.
Carol Taylor and her partner of 41 years, Betty Mack (in photo, above), are members of the Asheville UU congregation. They joined the lawsuit as plaintiffs because they hope to be married by Ward in their home congregation. The lawsuit, Taylor said, “should help recast the conversation because, nationwide, it’s seen as religion versus same-sex marriage, and of course, it isn’t. It’s one particular view of religion versus same-sex marriage.”
Under North Carolina law, it is a misdemeanor for clergy to marry couples who don’t have a state-issued marriage license, and same-sex couples cannot legally obtain a marriage license. If clergy violate the law, they can be criminally prosecuted and fined, although none have been, to date. The provision for criminal sanctions “shocked me to my core,” said Taylor. “For the state of North Carolina to say you can’t perform this religious ceremony is so blatantly a First Amendment infringement.”
Under the First Amendment, “Churches and faith groups have the right to associate to express their beliefs,” said S. Luke Largess of Tin Fulton Walker & Owen in Charlotte, N.C., which represents the plaintiffs along with Arnold & Porter. “If they believe that same-sex couples should be able to marry, and if a minister believes a couple is ready for marriage,” then a wedding should be able to proceed without criminal sanctions for the clergy performing them, Largess said.
Since the suit challenges peculiarities of the North Carolina law, including the criminal penalties, its applicability to other states may be limited even if the plaintiffs prevail, said Largess. Nonetheless, he added, “It’s important, in part, because it shows that there isn’t one religious viewpoint” around the issue of same-sex marriage.
With its argument for religious freedom, the suit has gained support from some unexpected sources, including the Rev. Dr. Albert Mohler, president of the Southern Baptist Theological Seminary. While he remains strongly opposed to same-sex marriage, Mohler said he was concerned about laws that might deny religious liberty to any group, and called the lawsuit “very convincing.”
And the plaintiffs are excited to be part of a novel legal approach. “I love the fact that progressive religion is standing up here,” said Ward, the UU minister from Asheville. “We’re not hiding, we are saying this is the foundation of our argument, and we think it’s great.”
Taylor chuckled, and added, “I’m so delighted to have the Synod of the United Church of Christ as the leading complainant because some folks say UUs aren’t a religion. But it’s hard to argue that a synod with the word ‘Christ’ in it is not a recognizable religion.”
Tanner, the UU minister from Charlotte who is one the plaintiffs, said, “I’m eager to challenge the hypocrisy and the state that Amendment One forces us to live in as religious liberals, which is a state of oppression.” She has made a commitment to same-sex couples in her congregation to travel with them and officiate at their weddings in states that allow same-sex marriage. It’s a financial and logistical burden on the congregation, Tanner said, “but it’s not the same as if they were married within our community, and our community could celebrate with them.”
The Unitarian Universalist Association has partnered with the United Church of Christ, a Protestant denomination with more than 5,100 congregations and 1.1 million members, on a variety of social justice and public witness initiatives in recent years. Together they developed and published the Our Whole Lives sexuality curriculum, and leaders of both denominations have appeared together at rallies for immigration reform, marriage equality, and civil rights.
Photograph (above): Plaintiffs Carol Taylor and Betty Mack are members of the UU Congregation of Asheville, N.C., and plaintiffs in the United Church of Christ’s lawsuit against the state’s same-sex marriage ban (courtesy Campaign for Southern Equality).