Suit Challenges North Carolina's Marriage Laws As Free Exercise and Establishment Violations

An unusual lawsuit was filed earlier this month in state court in North Carolina challenging North Carolina's statutes that require any marriage to be solemnized by a magistrate or a member of the clergy (GS Sec. 51-1) and prohibit them from solemnizing a marriage unless the couple has obtained a marriage license (GS Sec. 51-6). The complaint (full text) in Thigpen v. Cooper, (NC Super. Ct., filed 12/8/2011), alleges that (1) it violates the Establishment Clause for the state to make a member of the clergy an agent of the state to perform a marriage ceremony and submit a state granted license; (2) it violates state and federal free exercise protections for the state to require individuals entering into marriage to participate in a state-prescribed ceremony and licensing of the marriage; and (3) it is unconstitutional for the state to prohibit members of the clergy from solemnizing the marriage of same-sex couples. The complaint also alleges that the state's marriage requirements violate the personal liberty protections of the 14th Amendment and North Carolina's constitution. The Greensboro News-Record reported on the case last week.