Mark Joseph Stern: An Effort at Linguistic Slight of Hand and the Church of Christ Case in North Carolina

“Under North Carolina law, a minister who officiates a marriage ceremony between a couple with no valid marriage license is guilty of a class A misdemeanor and can be thrown in jail for 45 days. And since gay marriage is illegal in North Carolina, that means any minister who dares celebrate a gay union in his church may face jail time.”  So claims Mark Joseph Stern at Slate.com in response to a recent lawsuit by the Church of Christ in North Carolina attempting to overturn North Carolina’s ban on gay marriage on religious liberty grounds.  (This was tried once before in Thigpen v. Cooper, 739 S.E.2d 165 (N.C. App., 2013) but the North Carolina Court of appeals dismissed the case on procedural grounds).

Once again, Mr. Stern uses his significant linguistic abilities for naught.  His argument fails so miserably, it makes my head hurt.  In fact, I’ll go a step further and say this is blatantly false and patently absurd. The lawsuit is concocted to create an issue where none exists and Mr. Stern’s claims are outrageous.

Mr. Stern is correct that the statute he cites (N.C. Code 51-7) could result in a minister being found guilty of a Class A misdemeanor.  What Mr. Stern doesn’t bother to tell you, though, is that the statute in question is a prophylactic measure which is designed to make sure that when a wedding gets performed the license is not only valid, but also properly recorded with the appropriate government authority after the fact.  He also doesn’t bother mentioning that North Carolina law also contains another statute (51-6) that permits a religious ceremony to solemnize a marriage performed elsewhere.  Additionally, the statute does not say that ministers cannot perform a religious ceremony and, frankly, would be in crystal clear violation of the First Amendment if it did say so.

Moreover, what this statute prevents is exactly what is illegal in North Carolina: marriage without a license.  In other words, a minister cannot claim he performed a legal marriage and report this to the state without a valid license.  He cannot tell those whom he has married that their marriage is a legally valid marriage in North Carolina without a valid license.  He cannot represent to those gathered that a legally valid marriage has occurred without a valid license.  Nothing in the statute says that a minister cannot perform a church-endorsed celebration of a union between two people, homosexual or heterosexual, but he cannot call it a legal marriage without a valid license.  In fact, the Constitutional amendment banning gay marriage in North Carolina specifically allows for enforceable civil contracts between gay couples, and nothing in either law prevents a gathering to celebrate their union.  But what is prevented is calling something a marriage which is not. 

What is going on here is not a religious liberty issue, which is why the conservative “hypocrites” Mr. Stern rails against aren’t complaining.  Nothing would be any different about the statute he cited if gay marriage were allowed in North Carolina.  A minister still could not perform a legally valid civil marriage without a legally valid marriage license.  However, a minister could still perform any religious ceremony celebrating a union of two people who did not have a marriage license; he would simply have to make clear it was not a state-sanctioned marriage. 

The issue here is that North Carolina law only allows heterosexual couples to obtain marriage licenses.  In order to get arrested under the current law, Church of Christ ministers would have to lie to a gay couple by claiming they were legally married, lie to the two witnesses required by North Carolina law, lie to anybody else gathered at the celebration, and lie to the local register of deeds by providing a fraudulent marriage certificate based on a fraudulent marriage license.  There is nothing remotely Christian about any of this lying (I’m thinking Ten Commandments here).  If Church of Christ ministers have concluded they want to do all this lying so they can get arrested to make what they believe is a meaningful point, then they have every right to suffer whatever consequences attach to their actions.  This hardly qualifies as some sort of religious liberty issue – the state is not stopping religious celebrations from taking place, nor is it requiring Church of Christ ministers to act or fail to act in any particular way.

If the state of North Carolina passed a law stating that if any minister performed a ceremony celebrating the voluntary union of a homosexual couple they are guilty of a class A misdemeanor, I’d be right there with the Church of Christ arguing First Amendment. Religious liberty is at stake when the state steps in and prevents religious action from taking place or  requires action that violates religious conscience.  Neither is occurring here.  This is why the so-called conservative “hypocrites” Mr. Stern bemoans aren’t upset and why he’s so wrong in his analysis.

But, Mr. Stern doesn’t really care about his hyperbole or even whether he’s accurate.  He writes well and with flair, so I know he’s not stupid or incapable.  He doesn’t care because this isn’t about being honest, rational, logical, or even legally accurate.  This is about gay marriage as the law of the land and the ends justifying the means.  So Mr. Stern can muster up his alleged righteous indignation, but it’s all a slight of hand.  It certainly doesn’t qualify as reasoned or, frankly, even reality.