CHAPEL HILL — The Revs. Richard and Jill Edens have officiated at several same-sex unions, including that of now Carrboro Mayor Lydia Lavelle and her partner, Alicia Stemper.
But if the pastors were in a more conservative county and tried to marry two women, or two men, in violation of North Carolina’s constitutional ban on same-sex marriage, they could face a misdemeanor and 120 days in jail.
And that, a new lawsuit argues, violates the First Amendment’s guarantee of religious liberty.
Lavelle, a law professor at N.C. Central University, and Chapel Hill Mayor Mark Kleinschmidt, an attorney, spoke about the lawsuit Sunday morning at the United Church of Chapel Hill, where the Edenses are ministers.
The United Church of Christ, a denomination with 1.1 million members, is part of the country’s first faith-based challenge to a same-sex marriage ban.
The suit is one of three challenging the ban in North Carolina but the only one to argue its case on religious grounds, said Kleinschmidt, who is working on the case for the Asheville-based Campaign for Southern Equality.
“A marriage is not just a contract between two people standing at the altar,” he told about 100 people before Sunday’s 11 a.m. sermon. “It is also a contract between the two people and the state of North Carolina.”
Various government rights and benefits flow through a state-recognized marriage, he said.
The United Church of Christ and other denominations support same-sex marriage, but for a UCC or other clergy person to join that contract and marry two people of the same sex without a state marriage license is a crime in North Carolina, Kleinschmidt said.
It’s not something Richard Edens has thought about when he and his wife have officiated at about a dozen same-sex ceremonies, most of them in their church.
“We basically use the same format (as a conventional wedding),” he said Monday. “It’s a covenant’s that being made between the couple. The state chooses to recognize some of them, but not all of them.”
“I didn’t know it could be considered illegal until all this came up.”
The Edenses are not likely to be prosecuted in liberal Orange County, Assistant District Attorney Jeff Nieman said from the audience Sunday, to some laughter.
But technically they or other pastors across the state could be, Kleinschmidt said. And that violates their constitutional rights and those of their congregations, he said.
“It’s a pillar of faith, the ability to get married and to celebrate the union of a couple in association with their fellow congregants,” he said.
In addition to the religious argument, the Campaign for Southern Equality’s lawsuit filed April 28 in Charlotte also challenges the ban on the grounds that the 14th Amendment guarantees everyone due process and equal protection under the law.
Asked if the argument could help bigamists to seek marriage rights, Kleinschmidt called that line of thinking “a red herring.” The argument the legal team is making is that the state is denying two people, “similarly situated” as another couple down the street, the right to marry solely because one couple is same sex and the other is of different sexes.
NC Values Coalition Executive Director Tami Fitzgerald, who helped lead Christian and conservative groups supporting Amendment One, the state’s 2012 constitutional ban, said last month that the UCC lawsuit is trying to thwart voters who passed the ban with 61 percent of the vote.
“This is sadly, and predictably, the ‘lawsuit of the week’ filed by those who want to impose same-sex marriage on North Carolina,” Fitzgerald said. “It’s both ironic and sad that an entire religious denomination and its clergy who purport holding to Christian teachings on marriage would look to the courts to justify their errant beliefs.”
State bans that have been challenged have been overturned since the Supreme Court ruled last year that the federal Defense of Marriage Act limiting marriage to heterosexual unions was unconstitutional, Lavelle said.
There are now 70 marriage-equality cases filed in 30 states and Puerto Rico, and only three states with bans do not face legal challenges, she said.
“Especially in the last year, things have really speeded up,” Lavelle said.
Stemper, who has been Lavelle’s partner since 2003, noted that the couple had the commitment ceremony the Edenses led for them in 2004 and registered as domestic partners with the town of Carrboro in 2011, in part to protest Amendment One.
“We’ve been ‘married’ twice, and none of them count,” Stemper said.
“The third time will be the charm,” Lavelle said.
Charlotte Observer staff writer Michael Gordon contributed to this story.