Making History in Marriage Equality

clark at podium

While more than half of the states in the nation recognize marriage equality — including five just this month —only one national Christian denomination has fought and won a challenge to a state’s ban on same-sex marriage. This unprecedented win, based on the free exercise of religion, was delivered in North Carolina by Rutgers Law–Camden alumnus Don C. Clark, Jr. ’79 on behalf of the United Church of Christ.

On Oct. 10, U.S. District Court Judge Max Cogburn issued his ruling in the case General Synod of the United Church of Christ et al v. Resingerr, which struck down North Carolina’s marriage laws as unconstitutional.
The suit was filed in April by the United Church of Christ and a coalition of clergy, same-sex couples, and religious denominations, claiming that the state’s marriage laws violate the First Amendment rights of clergy and the principle of free exercise of religion.

Clark, who is general counsel for the United Church of Christ, says that by filing their First Amendment claims, “we were not trying to make others conform to our religious beliefs, but rather vindicate the constitutional rights of all faiths to be able to live out their faith practices without threat of sanction by the state.”

In addition to precluding same-sex couples from marrying, North Carolina marriage laws made it a criminal offense for clergy to solemnize marriages without a license, the state would only issue marriage licenses for heterosexual couples, and it would only allow confirmation ceremonies for those couples that had been legally married. “I viewed that as infringing on the free exercise of religious beliefs and the expressive association rights of clergy to perform and act on faith practices,” says the Rutgers Law–Camden alumnus. “We wanted to affirm the principle of religious clergy of all faiths to live out their beliefs, whatever they may be. North Carolina was an appropriate jurisdiction to make that first-of-its-kind argument.”

According to Clark, the United Church of Christ was the first protestant organization to ordain a woman and an openly gay person. “Since 2005, the church has publically come out in favor of marriage equality. So when marriage laws were being adopted and state constitutions were being adopted precluding marriage equality, the church looked for a variety of ways to make its views known and North Carolina provided an opportunity to do that.”

When forming its argumentative strategy, Clark says they took note of a series of cases including the Supreme Court’s 2000 case Boy Scouts of America v. Dale, and turned them around. “The U.S. Supreme Court held that an expressive association right is allowed in organizations such as the Boy Scouts to exclude homosexuals. We felt those expressive association rights should allow the United Church of Christ to include homosexuals in the faith practices that were important to us.”

Clark, who endows an annual law and religion lecture each spring at Rutgers–Camden, says the concept of equal rights is an enduring concept in America. “It speaks to the aspirations of our people that have been present since the founding of our country, coupled with the importance of religious freedom. I would expect all people, and especially people of faith, to continue to assert those aspirations and rights in any context in which they believe they are being infringed.”

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