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.”


Carmen Fowler LaBerge