Strange days: A church sues the state for the right to do wrong

Clergy and national officers with the United Church of Christ join with other local clergy and their legal counsel at a press conference announcing their lawsuit on April 28.

A Jewish Rabbi, a Baptist, a Unitarian Universalist and a Lutheran walked into a courthouse … It could be the opening line of a joke, but it’s not. It is a description of some of the parties involved in the United Church of Christ’s (UCC) lawsuit filed against the State of North Carolina seeking the right of UCC ministers to perform gay weddings. Those weddings are illegal under North Carolina law, but the UCC has determined that the prohibitions in the Bible and the prohibitions of the State should not prevent their ministers from doing what is right in their own eyes.


What’s really going on?

While the UCC is the lead plaintiff, as a denomination it has questionable standing. Therefore, they have grouped together the General Synod of the UCC, local UCC pastors (residing in North Carolina) and several homosexual couples (aka “Couple plaintiffs”) who claim they are being denied the right to exercise their religion by being denied marriage licenses.

The consortium is using a tactic employed by “public interest” activists to try and judicially change the law when legislative means have failed. The case will likely not be resolved at the trial court level, but will be heard at the Federal Court of Appeals for their circuit, and perhaps even the U.S. Supreme Court.


What’s the case about?

Count #1 of the lawsuit alleges that the N.C. law is a violation of the U.S. Constitution’s “Free Exercise” clause. Congress can make no laws prohibiting the free exercise of religion, to be sure, but that has limitations. A religious group cannot claim that the free exercise of their religion prevents the government from passing a law preventing them from sacrificing children to Moloch. Criminal laws against murder would not be seen to inhibit the free exercise of religion.

But under the free exercise complaint, it is alleged (paragraph 106), that “… the couple plaintiff’s are prohibited from becoming married in the tradition of their respective faiths.” (italics added).

No religion, not even the UCC, has a “tradition” of homosexual marriage. It may have a fairly recent social agenda aligned in support thereof, but it is absurd to say that homosexual marriage is a tenet of their faith and religious practice. If the practice is not “a tradition of their respective faiths” then their claims are factually baseless.

Marriage has traditionally been an act regulated by the government, and religious clergy, regardless of their particular persuasion, have not been free to violate state laws or regulations concerning marriage. For example, Hindu clerics have not been allowed to marry persons into polygamous unions despite Hindu acceptance of such practices. Recently, Warren Jeffs of the Fundamentalist Church of Jesus Christ of Latter Day Saints  (FDLS) was arrested for marrying underage girls (both to himself and for adherents of his sect).

State marriage laws have been traditionally upheld because there is a compelling state interest in regulating marriage and defining its limits, including criminalizing marriages deemed harmful, such as polygamy and underage marriages. Recent court decisions have challenged the scope of state regulation, and the case by the UCC is simply another angle of attack against the institution of marriage and the state’s traditional recognition of it.

Christians who would argue for same-sex marriage must do so apart from the clear rejection of homosexual practice throughout the Old and New Testaments of the Bible. Notably, the primary sacred texts of all the Abrahamic religions — Judaism, Christianity and Islam — categorically condemn homosexual practices.  The marriage of people of the same gender is a concept foreign to all faith systems, including Christianity, until the last few years.


The role of the robes

The UCC cannot genuinely argue that homosexual marriage is an essential tenet of the Christian faith. And, assuming that traditional legal principles are applied, it cannot be persuasively argued that denying a UCC minister the right to consecrate a homosexual marriage where it is illegal is a violation of the First Amendment.

But will traditional legal principles be applied or will an activist judge in an activist court use this case as an opportunity to change the law to change the land? This is where the robes of the liberal academy and the robes of the activist judiciary and the robes of progressive mainline Protestantism converge.

The UCC represents the robes of progressive mainline Protestantism. They have sidelined the plain meaning of the Scriptures for the continual revelation of God through human experience. Supported in its line of argumentation by ivory tower academics that homosexual practice is normal, the robes will appeal to each other for the state to agree with the church that wrong is right.

What does this do to the truth? What does this do to the state of the law? What does this do to the institution of marriage? What does this do to the church? What does this do to conservative pastors who continue to serve in denominations that actively suppress the truth and exchange the truth about God for lies? We shall see.


Why North Carolina?

The majority of states expressly ban same-sex marriage. North Carolina was one of the earliest to do so.


 Religious liberty and its limitations

States may pass regulations which adversely impact religious practices.  For example, there is a famous “peyote” case[1] which permits the state to regulate drugs, and while certain Indian tribes were allowed to use it ceremoniously, persons claiming to have new religious views which would allow them to smoke marijuana were not granted an exception to the law.  The practice, to be given an exception to the law, needs to be a genuinely held longstanding religious tenet central to the practice of a particular, recognized “faith.” The Christian faith and its constituent churches have held for 2,000 years that marriage is defined as between one man and one woman. That definition is derived from Christianity’s central sacred text, the Bible. The attempt of the United Church of Christ to change that definition and to seek to compel the state to allow such deviation from the Christian definition of marriage under the covering of “religious liberty” should be called for the misrepresentation that it is.

As noted earlier, several of the parties to the lawsuit are not from the UCC. The Jewish Rabbi, the Lutheran, the Unitarian Universalist nor the Baptist are part of religious groups that have a “tradition” of homosexual marriage. That means that legally, the complaint is therefore a factual misrepresentation.

The ultimate question is will the truth about the matter even matter if a group of activist judges are hearing it?

[1] Employment Division, Department of Human Resources of Oregon vs. Smith, 494 U.S. 872 (1990). “It is a permissible reading of the [free exercise clause]…to say that if prohibiting the exercise of religion is not the object of the [law] but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended….To make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is ‘compelling’ – permitting him, by virtue of his beliefs, ‘to become a law unto himself,’ contradicts both constitutional tradition and common sense.’ To adopt a true ‘compelling interest’ requirement for laws that affect religious practice would lead towards anarchy.”



Comments 12

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  • Not everyone in the UCC agrees on this issue, especially in North Carolina. Read this reflection by Pastor Bob Thomas:

  • Interesting you said that traditionally marriage have been regulated by the state and the clergy. Originally marriage was strictly vows of commitment that two people gave each other. Even the church didn’t get involved (reluctantly) until the 11th century. For $20 you can go online and get ordained in the church of the flying spaghetti monster and get a license to perform a marriage legally recognized by the state. Do you call that regulation? Why should the state care if couples that want to get married are the same sex?

    What did Christ say about same sex marriage? Absolutely nothing. He did say a lot about love.

  • Since when do denominations of Christianity get to decide who is a “real” Christian? Have you thought of the consequences to YOUR faiths of this law? If North Carolina can ban part of UCC ritual and practice, if they can force people to NOT perform rituals involving marriage, what stops another state from forcing churches TO PERFORM them?
    The general message here is: you canNOT make laws that encumber free expression of religion, even if it’s not YOUR religion.
    Freedom to practice religion is not limited to only certain faiths!

  • Now this is curious: You believe it is OK for the state to criminalize the performance of a Liturgy from the UCC Book of Worship, but it a violation of religious freedom for a corporation to be forced to include birth control in its health coverage or for a business to be forced to serve customers it finds unpleasant.

    • Z, I believe that its a complicated mess and I wish that as Christians living in a nation where freedom of religion is guaranteed in the Constitution we were working this out in some way other than courts of law. But here, as a nation and as Christians living in that nation, we are; so here we deliberate and here we decide on which sides of which arguments we are lead by God’s Word to stand – regardless of the world’s response.
      In my view, the simplest solution to the Affordable Care Act’s “employer mandate” is to end employer coverage altogether. Each individual America can then be exercise the freedom of their own conscience in determining the level of coverage they need and want to pay for. Employers can increase compensation by some national average to cover the cost, but the issue of conscience would then lie solely between the individual and God.
      Also, look at the very language you chose to use in your comment. “forced to include” and “forced to serve.” Forced to is ultimately what’s at issue. Our experience in the PCUSA has been that “may” becomes “shall” and that means that “freedom to” becomes “forced to” in short order. So, I admit there’s some denominational judicial and legislative experience being expressed.
      Thanks for the interaction – Carmen

      • “Forced to ” is merely a choice of a simple phrase instead of expressing the idea in a more complicated way, saying that a business does not have the option to refuse to serve a certain class of customers because of who they are. In any case, this was an issue that was settled at lunch counters in Greensboro and Nashville 54 years ago. And yes, the analogy is on-target.
        Your solution for employers is available now. They may cease their coverage, make the appropriate Employer Shared Responsibility Payment reflecting the fact that many employees will be partially subsidized on the Health Care marketplaces, and increase salaries to a level necessary to purchase health insurance on those marketplaces.
        I am uncertain who you imagine is the “we” when you say that you wish “we were working this out.” In our form of government, when laws affect competing rights, real or imagined, the courts ARE where such things are worked out. Surely you do not mean “we Christians.” We Christians do not get to decide how the first and fourteenth amendments to the constitution are interpreted.

      • Dear Carmen,

        It’s too bad that this discussion got derailed into just another debate over health insurance. Frankly, I feel that it gave you cover for ignoring Z’s leading point, and that you took full advantage of that!

        Your key argument right off the bat — under the bold heading of “What’s the case about?” — presented what I regard as basically an utterly bogus comparison in terms of the law. Z challenged you on it, and you dodged the challenge. So how about facing up to it?

        You urged your readers to accept a supposed similarity between performance of a verbal liturgy within a church sanctuary between consenting adults with the murder of children by burning them to death on the arms of a metal statue of Moloch. I do get that, theologically, that is what you believe. But you are claiming to make your argument based on US law. You are pretending that the government has the same right “to criminalize the performance of a Liturgy from the UCC Book of Worship” — as Z put it — as it has to prevent and prosecute the murder of children.

        As you yourself said, FORCE is “ultimately what’s at issue.” Are you truly willing to stand by your declaration that a government under the US Constitution has the right to FORCIBLY prevent and prosecute “the performance of a Liturgy from the UCC Book of Worship” between consenting adults in a church sanctuary? I’m not talking about churches printing out phony marriage licenses or anything else that encroaches on state functions. I am just asking whether you stand by your black-and-white claim that the government can legitimately limit the free exercise of religion by making it a crime for certain words to be voluntarily uttered by adults in a church ceremony.

        Do you really believe that, and feel justified in persuading people to go that route? How on earth does that square with your desire to be seen as someone who respects the Constitution of the United States of America?

        Thank you for considering this point.

        God bless you,

        A religious group cannot claim that the free exercise of their religion prevents the government from passing a law preventing them from sacrificing children to Moloch. Criminal laws against murder would not be seen to inhibit the free exercise of religion.

    • Right on, Z!

  • The UCC is heretical and apostate. They are driven by progressive politics, not the Bible. They now have less than one million members. Many are very old, pay no attention to what goes on outside the local church, and have no idea what their denomination has become.

    • Really? We have a large, thriving UCC community here in New England! We have lots of young families, and an active church community! Some of our oldest members (in their 80’s and 90’s) actually voted for us becoming open and Affirming, and our search committee prayerfully chose a married homosexual man as pastor. We have at least three married lesbian couples with children attending church. We are Christains who teach that god loves ALL his children, and we love one another the way HE does…

      • Please do not refer to God as “HE”, it’s not gender inclusive. I thought you would have learned that by now from using the black hymnal.

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