By Dr. Mark H. Creech, executive director
Christian Action League
A lawsuit has been filed in Guilford County by the County’s Register of Deeds, Jeff Thigpen and 10 other persons, who claim that couples who intend to marry should not have to obtain a state-issued marriage license.
The litigation, filed in Guilford County Superior Court on December 8, names state Attorney General Roy Cooper as the defendant and argues the state’s current marriage statutes violate the U.S. Constitution and the principal of the separation of church and state by mandating couples seek a marriage license, requiring religious leaders to sign them, and by prohibiting religious leaders from solemnizing the marriage of same-sex couples.
The complaint reads: “In order (to) adequately and fully protect the personal liberty and religious freedom of citizens of North Carolina and the United States, there must be a de-coupling and disentanglement of the state from the personal and religious institution of marriage. The institution of marriage should be solely in the dominion of citizens and their religious and secular organizations, except that the state should be permitted to carry out prohibitions of marriage for infancy, insanity, bigamy or polygamy, and incest, and marriage as a result of fraud, duress, joke or mistake; and the state should be permitted to adjudicate rights relating to support, child custody, and property in connection with marriages and their dissolution.”
The plaintiffs in this case, which include three Greensboro area clergy and seven heterosexual and homosexual residents from Greensboro, Winston-Salem and Mocksville, are in error on a number of counts.
First, their case fundamentally fails to recognize the importance of marriage and its impact on society. The state has always been empowered to regulate in order to protect the public’s health and the general welfare of the citizenry. Thus, we have innumerable laws that seek to safeguard our personal security and property rights, for example. Although personal and consensual, we also have laws regarding prostitution, gambling, and private alcohol and drug use. The reason our culture chooses to regulate these matters is because our private acts have public consequences. It is no less true with marriage. Marriage isn’t simply a personal, private, consensual act. Children are very much a part of the equation, and as such, the greater part of society is significantly affected. Furthermore, when marriage is weakened, the costs are borne not only by individual children and families, but by everyone – taxpayers, citizens, and neighbors. Consequentially, the costs of crime, welfare, education and health care expenditures, as well as reduced security for individual marriage investments are incurred by society as a whole. Therefore, because marriage is a public good, it is precisely one of the reasons the state should defend, promote, and regulate it. To deregulate marriage would result in a host of unintended negative consequences. 
Second, the plaintiff’s case erroneously claims that having clergy fill out and sign state marriage licenses is a violation of separation of church and state. Certainly, we don’t want the state running the church or the church running the state. This objection of the separation of church and state, however, completely misses the mark, making a flawed assumption that our laws must not impose any religiously based morality on the public. Yet were this actually true murder, stealing, and prohibitions against lying under oath or swindling one’s business partner would have to be removed from the state’s statutes because each has a religiously based morality – the Ten Commandments. Requiring clergy who perform marriage ceremonies to signify that a marriage has occurred in no way mandates how, when, or whether to worship – that would be a violation of church and state. But since all laws have a moral premise and all morality has a religious reference, it’s impossible to avoid the imposition of a particular value system on state statutes. Furthermore, anyone concerned enough about keeping religion out of the formalization of their marriage need not use any clergy, but can turn to a civil authority for its performance.
Third, the complaint advocates a religiously based morality shouldn’t be imposed on marriage, but then allows the state to ban marriage in instances such as “bigamy and polygamy.” This is a glaring inconsistency. On the one hand the lawsuit says we should get the state out of the regulation of marriage. And then, on the other hand, it advocates the state should be involved, prohibiting certain forms of marriage. Interestingly, the complaint seems to recognize marriage is more than just a personal, private matter, with religious overtones for many, and that it has a public import. Nevertheless, the personal or religious beliefs of those who contend it’s perfectly legitimate to have more than one life’s partner are denied by the litigation’s argument. The reasoning implied? Such beliefs have negative social outcomes.
Fourth, the fact that certain clergy who want to be able to solemnize same-sex marriages and homosexuals who want to be married prefer that the government get out of marriage licensing, makes absolutely no sense. What purpose in such an approach possibly serves their interest? Clergy may already solemnize any same-sex union they wish. Such a union just doesn’t have state sanction or “deemed in law” to be a marriage ceremony. But if they don’t want the state to be involved in the matter, what difference should it make? The homosexuals who have signed onto the lawsuit want to be able to legally get married. But how can they do this if they don’t attain state sanctioning by the government’s involvement? This one is a head scratcher.
Lastly, the most important thing demonstrated by this lawsuit is that North Carolina needs a Marriage Amendment in its constitution to defend marriage as one man and one woman. Otherwise, frivolous lawsuits such as this one before a sympathetic judge could result in a court imposed definition or requirement for marriage policy. A Marriage Amendment to the state’s constitution should resolve the marriage question for North Carolina. But it should be the people of this state that make the decision about something as foundational as marriage – not the courts, not even the legislature.
We’ll watch to see what happens with this court case. In the meantime, all of us need to work diligently for the passage of the Marriage Protection Amendment to be voted on during the primaries in May.
 Matthew Staver, Same Sex Marriage: Putting Every Household at Risk, Broadman and Holman Publishers, 2004 pgs. 21-22
Read the lawsuit, Jeff Thigpen et al. vs. Roy Cooper, by clicking here