Most gay marriage lawsuits have been brought by couples, but, in North Carolina, it’s the clergy filing suit. Ministers from the United Church of Christ are going to federal court to claim that the state’s gay marriage ban encroaches on their religious liberty: North Carolina not only bans same-sex weddings at the courthouse, but holds ministers and other people authorized to conduct weddings liable if they perform unauthorized marriages.

The New York Timescharacterized the suit as “a novel legal attack on a state’s same-sex marriage ban” and Time noted that it was the “first time for a national Christian denomination to sue in favor of same-sex marriage.” The UCC suit is a hybrid case, which folds in some familiar claims about an intrinsic right to gay marriage into its religious liberty claims. If the North Carolina ban falls, it will likely be due to the familiar claims brought by the couples, not the novel religious liberty claims made by their pastors.

The suit has three sets of plaintiffs, making two different types of arguments. The first two classes of plaintiffs are the church itself and its ministers, both of whom are making a religious liberty claim about their ability to conduct marriages ceremonies in their churches. The third class is the gay couples themselves who are making both a religious liberty claim about church weddings as well as an equal protection and due process claim against the state’s ban on the legal recognition of gay marriages, which more closely resembles previous suits.

The North Carolina gay marriage amendment (passed as Amendment One, incorporated into the state constitution as Article XIV, Section 6) doesn’t limit religious liberty. The amendment does not make it illegal for same-sex couples to have private, unofficial marriage ceremonies, or to set up legal contracts to approximate the full rights and privileges of marriage as closely as they can. The amendment states:

Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State. This section does not prohibit a private party from entering into contracts with another private party; nor does this section prohibit courts from adjudicating the rights of private parties pursuant to such contracts.

A private ceremony becomes a crime if the officiant has been empowered by the state to conduct legal marriages. If a minister presides at one of these legally invalid marriages as forbidden by § 51-6, “No minister, officer, or any other person authorized to solemnize a marriage under the laws of this State shall perform a ceremony of marriage between a man and woman, or shall declare them to be husband and wife, until there is delivered to that person a license for the marriage of the said persons,” he or she can be fined up to $200 per couple, according to state statute § 51-7.

This restriction is part of North Carolina’s general code, and predates the gay marriage amendment. It is the law being contested under religious liberty claims. However, it’s less an anti-gay marriage provision than an anti-fraud law. The statute is the legal equivalent of banning notaries public from witnessing and stamping invalid or unofficial contracts, even if they promise to use a unofficial stamp. As long as they’re going through the same motions and procedures as when they conduct official state business, there’s the possibility for confusion.

North Carolina is not alone in setting these restrictions. Alabama, Arizona, Connecticut, Michigan, South Dakota, Virginia, and Wisconsin, all forbid people permitted to officially solemnize marriage to supervise unauthorized ceremonies. Most states classify this as a misdemeanor, and Alabama sets the highest fine at a stiff $1000 per wedding. In Virginia, rogue ministers may be sentenced to up to one year in jail.

If the North Carolina law falls on these narrow religious liberties grounds, it is unlikely to have any far reaching consequences for marriage generally. There are several modest remedies available. The state could also come up with a clearer way to set off official solemnizations from all other marriage rituals. If official weddings included an official preamble or the officiant were required to wear some lapel pin of office, it would be more obvious when the pastor was acting as an agent of the state or just as a shepherd of her flock.

If preachers didn’t like having to make some accommodation for the state in the midst of their sacraments, ministers could simply stop solemnizing marriage for the state, and regain all their religious liberties. Couples would still need to go to City Hall to handle the contractual element of their union. Or perhaps at official marriages some other church official would do the bureaucratic solemnizing, while the minister conducted the actual marriage. At unofficial marriages, the extraneous person could be dispensed with. Tennessee makes this kind of accommodation for Quakers, who do not necessarily have any officiant at their wedding ceremonies.

The state shouldn’t interfere with religious marriage ceremonies, but it is no more obligated to recognize same-sex unions performed in the United Church of Christ than it is the polygamous marriages sealed by the Fundamentalist Church of Jesus Christ of Latter-Day Saints. The religious liberty facet of this suit is attracting attention in the court of public opinion, but, in front of a judge, this novel claim is very unlikely to be the cause of legal gay marriage in North Carolina.

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