From Randall - summary of the lawsuit concerning marriage and establishment of religion
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;”
The Complaint, Thigpen v Cooper*, is a 1st Amendment action. It proposes that “licensing” clergy and the representatives of religious institutions as Agents of State Government is a direct violation of the “establishment clause”. Secondly, it proposes that prohibiting clergy from solemnizing unions for which the State will not issue licenses is a violation of the “free exercise” of religion.
Presently, North Carolina requires all persons wishing to be married to obtain licenses. These licenses authorize a 3rd individual the power to act as an agent of the State for the purposes of ceremony, witness, and certification for the recording of the marriage in State records. The purpose of the license is to transfer authority from the State to another person for the purposes of contracting the marriage. In the case of “church weddings”, the license transfers authority to religious officials. Also, North Carolina prohibits clergy, under penalty of law, from solemnizing any union without a license. The Canons of the Episcopal Church also prohibit clergy from solemnizing any union without a license.
Thigpen v Cooper argues that this arrangement is unconstitutional and must be stopped. It contends that religious dogma and theology are in fact being written into law due to the enmeshment of religious institutions and State. While this arrangement may work for many of the citizens of the State, it does not serve all. In fact, marriage law, as developed through this enmeshment of religious and civil law, has intentionally excluded some and unintentionally created punitive consequences for others who might desire marriage.
Consider the following circumstances in which couples would seek marriage (civil, religious, or both) but find too many roadblocks in consideration of their personal circumstances. For the sake of argument, let’s assume there are no impediments such as divorce, blood relationship, or diminished capacity.
Heterosexual Couples with no special circumstances such as disability, financial constraint, or issues of legal status face no impediments and are supported by social and religious culture and receive tax and legal benefits.
Disabled Couples may marry civilly but could face loss of Social Security, Disability, Medicaid, Medicare, and other benefits if they do so. Religious ceremony is prohibited without civil license.
Widows/Widowers living with benefits (pensions, health insurance, etc.) of deceased spouses could lose all or part of those benefits if they ever remarry civilly.
Older Couples who would like to marry find that civil law binds their extended families together with all the complications that would create. Remarriage can co-mingle their estates and open the door to family infighting and legal challenges.
Undocumented Persons have no access to civil marriage. Religious ceremony is prohibited without civil license.
Homosexual Couples have no access to civil marriage. Religious ceremony is prohibited without civil license.
This suit is a call for Systemic Change. If successful, it could begin a new era of developing domestic union law apart from religious dogma and control. If clergy and religious institutions are detached from State Agency, clergy and religious institutions could develop guidelines for “marrying” couples who cannot or should not register their unions with the State.
*Jeff Thigpen is the Guilford County Register of Deeds.
Roy Cooper is the North Carolina Attorney General.