Same-sex marriage bans have faced a number of legal challenges over the years, but a new lawsuit from the United Church of Christ is apparently the first challenge in the courts to invoke religious liberty. The suit will ask a district court in North Carolina to strike down the state's laws barring same-sex marriages, in part because a provision that makes it a misdemeanor for clergy to perform the ceremonies violates the church's religious freedom. A number of same-sex couples have also joined the suit, petitioning for the right to marry.
This is the 66th challenge to a same-sex marriage ban currently making its way through the courts, as the Charlotte Observer explains. It joins many of those other challenges in also citing the equal protection and due process provisions of the Fourteenth Amendment in its challenge against state laws. The suit reads:
"By denying same-sex couples the right to marry and prohibiting religious denominations even from performing marriage ceremonies for same-sex couples, the State of North Carolina stigmatizes same-sex couples, as well as the religious institutions and clergy that believe in equal rights."
We're used to seeing religious freedom arguments in the courts these days, but they're usually on behalf of conservative groups, in favor of conservative or traditional restrictions on social issues. For instance, "religious freedom" was the reason behind a bill in Michigan that would have allowed adoption agencies to discriminate on religious grounds against families looking to adopt — including the ability to refuse to place children in the homes of LGBT couples. And "religious freedom" also brought us the anti-gay bill, ultimately vetoed by the governor in Arizona, that would have allowed businesses to refuse to serve gay customers. And of course it played a big role in conservative opposition to the contraceptive mandate in the health care reform laws.
In other words, the UCC's lawsuit represents both an expansion of the legal arguments against same-sex marriage bans, and a challenge to the conservative supporters of religious freedom. Although the UCC's complaint here is genuine, the suit itself is also something of a troll on religious liberty champions who consistently cite the protection to limit LGBT rights.
That challenge to religious liberty invokers was noted in a piece over at Slate, titled "Religious Liberty Hypocrisy." In response, at least one writer on religious freedom — Ramesh Ponnuru — has said he supports the argument that the North Carolina law should be struck down, based on the same religious liberty arguments he uses to oppose the contraceptive mandate's application to religious groups.
Of course, as the Charlotte Observer explains, the UCC's challenge to North Carolina's anti-marriage equality laws could become moot before it makes its way through the court. There are already two federal challenges to the state's ban filed in federal courts. And if the Fourth Circuit Court of Appeals decides against Virginia's same-sex marriage ban (as many expect them to do), that decision could also strike down existing bans in North Carolina, West Virginia, and South Carolina.