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North Carolina Clergy Bring Challenge to State Gay Marriage Ban

Reverend Joe Hoffman. Campaign for Southern Equality

A federal lawsuit challenging North Carolina’s constitutional amendment ban on same-sex marriage was filed on Monday, but this time it was brought by a group of clergy.

The men and women of the cloth say that the state’s “Amendment 1,” which was approved by voters in 2012, infringes upon their religious freedom to perform marriages for their gay and lesbian congregants.

Rev. Joe Hoffman, Senior Minister of the First Congregational United Church of Christ, in Asheville, noted that his denomination has supported same-sex rights for years, but faces the penalty of a misdemeanor if he performed any marriage ceremonies for them, which he has.

"It’s actually just a continuation of things I've been doing for about ten to fifteen years,” Hoffman told NBC News on Monday. “I’m in a community where there’s a large number of gay and lesbian people, a lot of those are friends, a lot of those are church members, and the injustice is just awful."

He added, "A man and woman can get married and get 1000 rights, but a same-sex couple can't ... that injustice has bothered me for a long time."

Hoffman is among the coalition of clergy bringing the case, which was spearheaded by the campaign for Southern Equality.

Of the scores of same-sex marriage lawsuits filed around the country, the group says this is the first one based on a First Amendment religious-freedom argument, as opposed to the 14th Amendment equal-protection arguments.

CSE Executive Director Rev. Jasmine Beach-Ferrara — ordained in 2012 just as the North Carolina amendment was being passed — said her office had been working to this day for three years, even as the same-sex ban was just being talked about.

"We think it's an exciting addition to the 14th Amendment arguments that are being made ... For a number of reasons, we think there are various 1st amendment rights that are being violated,” she told NBC News.

"With any lawsuit there’s a story being told, and the story here is there are many religious traditions who bless same-sex marriages and believe that same-sex couples should be fully supported in the church."

Both Reverends Hoffman and Beach-Ferrara said that they hadn’t experienced any negative feedback from other Christians, but noted that it was still early.

"We’ll obviously wait to see what kind of responses it gets," said Beach-Ferrara. "We’re hopeful that there will be a widespread recognition that religions freedom is a core value in this country."

The official defendant in the case is North Carolina Attorney General Roy Cooper, whose office did not return calls for comment on Monday.

A spokeswoman for the AG’s office told the Citizen-Times newspaper that their office does not comment on pending litigation, but pointed to an earlier statement from Cooper.

“North Carolina should change its laws to allow marriage equality and I believe basic fairness eventually will prevail,” the statement said. ”However, when legal arguments exist to defend a law, it is the duty of the Office of the Attorney General under North Carolina law to make those arguments in court.”

The U.S. Supreme Court ruled last year — in “United States V. Windsor” — that the federal government must recognize marriages of same-sex couples. Seventeen states allow gay marriage, and federal judges have struck down bans in Michigan, Utah, Texas, Oklahoma and Virginia.

Meanwhile, N.C. Values Coalition executive director Tami Fitzgerald, who helped lead a coalition of Christian and conservative groups supporting the state's 2012 constitutional amendment, said the lawsuit is an attempt to void the will of voters who backed traditional marriage. Six in 10 voters backed changing North Carolina's constitution.

"This is sadly, and predictably, the 'lawsuit of the week' filed by those who want to impose same-sex marriage on North Carolina," said Fitzgerald. "Moreover, 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."

The case will likely not be moved upon until other same-sex challenges already in the same federal court, the Fourth Circuit Court Appeals, are decided.

"The expectation is that the U.S. Court of Appeals for the Fourth Circuit will issue a decision in a pending case concerning the legitimacy of same-sex marriage bans in a case concerning Virginia's same-sex marriage ban," Professor John Dinan, who specializes in state constitutional law at North Carolina’s Wake Forest University, told NBC News.

"And, in that sense, the question of the legitimacy of same-sex marriage bans is already before the Fourth Circuit, and any decision issued by the court would presumably apply to all states within the Fourth Circuit, including North Carolina.”

But he noted, if the First Amendment case has to stand on its own two feet, it may not be as successful.

"It is not clear that this type of challenge will be more effective than the challenges that have to date proved successful in various federal district courts," he said. "Litigants who have been successful in challenging same-sex marriage bans in federal district courts over the last year have generally drawn strength from the Supreme Court's Windsor decision, which was not grounded in religious-liberty claims."

— with the Associated Press