An unusual lawsuit in North Carolina is shifting the conversation about religious freedom -- and could be driving a wedge between some major opponents of same-sex marriage.
Clergy from the United Church of Christ, a liberal denomination that voted to support gay weddings in its churches in 2005, filed suit in a North Carolina district court Monday, becoming the latest in a nationwide series of cases against a state's same-sex marriage ban. Like dozens of similar lawsuits filed across the country, the North Carolina suit argues that the state's ban violates gay couples' constitutional right to equal protection. But in a unique twist, the suit adds that the ban also violates the First Amendment right of members of the clergy to practice their faith -- because the state's ban criminalizes pastors who bless same-sex unions, leaving clergy open to arrest.
That's a cause that's gaining unexpected support.
Albert Mohler, president of the Southern Baptist Theological Seminary, declared Tuesday that North Carolina's ban is "dubious and dangerous." And while Mohler has not changed his opposition to same-sex marriage -- he once equated homosexuality with cancer -- he did concede that the UCC clergy's lawsuit is "very convincing."
"It puts those of us who advocate both for marriage as the union of a man and a woman and for religious liberty, including the liberty of Christians to hold fast to a Christian and biblical understanding of marriage, in a very difficult position," said Mohler in a podcast Tuesday.
Legal experts say that North Carolina's criminalization of clergy for blessing a same-sex union is unique and not typically found in other states where same-sex marriage is banned. Jake Sussman, a leading lawyer for the plaintiffs, said that he is not aware of any clergy who have been arrested. However, he added, the lawsuit names the state's attorney general and several district attorneys as defendants because such a prosecution would be "well within their power and discretion."
Eric Teetsel, director of the Manhattan Declaration, a prominent anti-gay marriage group founded by the late evangelical leader Chuck Colson, said the plaintiffs' case may not be as strong as they think.
"From my understanding, [the clergy] are not being prevented from performing their religious services," said Teetsel. "That said, if there was a law that denied UCC or any church from conducting a purely religious ceremony, I would be against it. The right to religious freedom and free exercise is so important that we have to defend it even in instances where people are doing things we disagree with."
Experts say the lawsuit may reflect a shift in the fight over gay rights, noting that opponents of same-sex marriage have lately been arguing more and more that allowing gay couples to wed threatens the religious freedom of both clergy and business owners who believe their faith opposes it.
"It turns everything on its head," Randall Balmer, a professor of American religious history at Dartmouth College and author of First Freedom: The Fight for Religious Liberty, said of the suit.
Not all religious conservatives are buying the argument.
"I'm not sure if this is a religious freedom claim or a publicity stunt," said Russell Moore, president of the Ethics and Religious Liberty Commission of the Southern Baptist Convention, which has been one of the loudest religious voices against gay marriage. "This isn't the institutionalization of one particular religious viewpoint, but an idea that virtually every civilization has defined as being between one man and one woman."
Moore, along with other religious conservatives, argued that when it comes to recent laws regulating same-sex marriage, religious liberty is a right that should be reserved for those who disagree with gay marriage.
"Religious liberty is something different," said Moore. "It's when there is an infringement that happens on people's right to dissent to same-sex marriages. We are concerned with people being forced to participate in those ceremonies, which we see with cases of florists, photographers and others across the country."
Tami Fitzgerald, director of the North Carolina Values Coalition, the group that led the charge to pass the state's ban on same-sex marriage, echoed Moore's sentiments, saying the beliefs of the clergy from the United Church of Christ are "errant."
"These individuals are simply revisionists that distort the teaching of Scripture to justify sexual revolution, not marital sanctity," Fitzgerald said in a statement.
The North Carolina clergy disagree.
"As a Christian minister in a Christian church that supports same-gender marriage, I should be religiously free to offer my services as a minister performing a wedding for a couple in my congregation," said Rev. Nancy Ellett Allison, a United Church of Christ plaintiff in the case, which also includes a dozen non-UCC clergy and same-sex couples.
Religious conservatives have long argued that they should be exempt from a range of laws because of their beliefs, most notably regarding the contraception mandate in Obamacare that's at the center of two religious freedom cases the U.S. Supreme Court is expected to rule on in June. In recent years, opponents of same-sex marriage have been also increasingly focused on religious freedom.
In New Mexico, Colorado and Washington state, religious business owners have lost lawsuits over whether the anti-discrimination laws have caused people such as florists, photographers and bakers to break the law if they decline to serve customers whose same-sex marriages they view as immoral.
In February, after a national uproar from gay rights supporters, Arizona Gov. Jan Brewer vetoed a proposed law that would have made it legal for business owners to deny services to same-sex couples based on religious objections.
But despite setbacks, opponents of same-sex marriage persist in their efforts. "Dear Marriage Supporter, Can you envision a future in which your support of marriage deprives you of your job...of your business...of your liberty?" began a fundraising message from the National Organization for Marriage, a leading group opposing same-sex marriage, earlier this month.
Katherine Franke, a professor at Columbia Law School who recently helped launch a project to research the increased use of religious exemption claims in courts, sees this trend as evidence of the momentum of the gay rights movement.
"This is plan B," she said. "Plan A was defeating the same-sex marriage movement in the courts and legislatures, and they've lost that battle. So Plan B is to turn to religion: You can have your laws, they just don't apply to me."
It's not yet clear how the North Carolina case will ultimately affect the debate over religious liberty. Some same-sex marriage opponents may support the case, Franke said, because it could help their long-term goals. "They're interested in robust interpretations of the First Amendment," she said.
Indeed, in his podcast, Mohler urged listeners to take the long view.
"Even as we advocate for religious liberty, we have to understand that the guarantee of religious liberty means the freedom of heretics to teach heresy," he said. "If we deny religious liberty for others, very soon others will deny religious liberty to us. That's fair warning and this case bears close attention."
CLARIFICATION: This article has been updated to clarify that same-sex marriage-related lawsuits in New Mexico, Colorado and Washington state were focused on anti-discrimination laws. It's also been updated to clarify that the United Church of Christ voted to support same-sex marriages in 2005.
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