How in the flying hell is this law even constitutional? You don't even need to support SSM to realize this is utterly f**ked up.
The law penalizing performing unlicensed marriages was passed back in the days before SSM was even a topic and back when the concept of there being a distinction between civil and religious marriage was not widely held. It was all marriage.
The point is that this doesn't really matter. This law flies in the face of religious freedom regardless.
Not necessarily. If the violation would only occur if the preacher were to say as part of the ceremony "By the authority vested in me by the State of North Carolina, I now pronounce you wife and wife." despite there being no marriage license then that wouldn't be a violation of religious freedom.
That's quite a big "if". Do you have any reason to believe that it is so?
I have no reason to believe it is not. I give the relevant statutes below. 51-6 applies only to marrying a man and a woman without a license. 51-7 applies to marrying people who are required to have a license without them having one, but there is no law requiring people of the same gender to have a marriage license in order to wed. Indeed, as 51-1 and 51-1.2 make clear, the State of North Carolina holds that there is no such thing as same-sex marriage under the laws of that State.
I fail to see how someone could be charged under 51-7 for officiating at a same-sex marriage when other sections of the law make it clear that as far as the law is concerned, there is no such thing as a same sex marriage. They could get charged under some other section of the law if they fraudulently intimated that the State of North Carolina would be recognizing the same sex marriage when it would not, but that wouldn't prevent a same-sex marriage that was performed without civil solemnization.
§ 51-1. Requisites of marriage; solemnization.A valid and sufficient marriage is created by the consent of a male and female person who may lawfully marry, presently to take each other as husband and wife, freely, seriously and plainly expressed by each in the presence of the other, either:
(1) a. In the presence of an ordained minister of any religious denomination, a minister authorized by a church, or a magistrate; and
b. With the consequent declaration by the minister or magistrate that the persons are husband and wife; or
(2) In accordance with any mode of solemnization recognized by any religious denomination, or federally or State recognized Indian Nation or Tribe.
Marriages solemnized before March 9, 1909, by ministers of the gospel licensed, but not ordained, are validated from their consummation.
§ 51-1.2. Marriages between persons of the same gender not valid.Marriages, whether created by common law, contracted, or performed outside of North Carolina, between individuals of the same gender are not valid in North Carolina.
§ 51-6. Solemnization without license unlawful.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, signed by the register of deeds of the county in which the marriage license was issued or by a lawful deputy or assistant. There must be at least two witnesses to the marriage ceremony.
Whenever a man and woman have been lawfully married in accordance with the laws of the state in which the marriage ceremony took place, and said marriage was performed by a magistrate or some other civil official duly authorized to perform such ceremony, and the parties thereafter wish to confirm their marriage vows before an ordained minister or minister authorized by a church, or in a ceremony recognized by any religious denomination, federally or State recognized Indian Nation or Tribe, nothing herein shall be deemed to prohibit such confirmation ceremony; provided, however, that such confirmation ceremony shall not be deemed in law to be a marriage ceremony, such confirmation ceremony shall in no way affect the validity or invalidity of the prior marriage ceremony performed by a civil official, no license for such confirmation ceremony shall be issued by a register of deeds, and no record of such confirmation ceremony may be kept by a register of deeds.
§ 51-7. Penalty for solemnizing without license.Every minister, officer, or any other person authorized to solemnize a marriage under the laws of this State, who marries any couple without a license being first delivered to that person, as required by law, or after the expiration of such license, or who fails to return such license to the register of deeds within 10 days after any marriage celebrated by virtue thereof, with the certificate appended thereto duly filled up and signed, shall forfeit and pay two hundred dollars ($200.00) to any person who sues therefore, and shall also be guilty of a Class 1 misdemeanor.
