@NCCapitol

Court: NC magistrates can refuse to perform same-sex weddings

Posted June 28

A Wake County magistrate marries a same-sex couple after a federal court ruling overturned North Carolina's constitutional prohibition against gay marriage.

— North Carolina's law allowing magistrates to refuse to perform same-sex marriages survived a challenge Wednesday when an appeals court determined that three couples weren't harmed enough to fight the state's use of taxpayer money to apply the law.

The 4th U.S. Circuit Court of Appeals dismissed their lawsuit, rejecting arguments by the couples that their status as North Carolina taxpayers gives them standing to sue. Because two of the couples are already married and the third is engaged, the law hasn't hurt their ability to wed, the judges said.

"The outcome here is in no way a comment on same-sex marriage as a matter of social policy. The case before us is far more technical, whether plaintiffs, simply by virtue of their status as state taxpayers, have alleged a personal, particularized injury for the purposes of (federal court) standing," Judge J. Harvie Wilkinson wrote in the 3-0 ruling.

The plaintiffs are considering whether seek a hearing before the full 4th Circuit or take their challenge of the law to the U.S. Supreme Court, according to the Campaign for Southern Equality.

"The fundamental question here is when a legislature acts to target a specific community, which is clearly what happened with SB2, there has to be a way to challenge a law that's based on animus and bias. And SB2 absolutely fits those criteria," the group's executive director, the Rev. Jasmine Beach-Ferrara, said in an interview.

The 2015 law allows magistrates to recuse themselves from performing marriages "based on any sincerely held religious objections." Those who file such notices are prevented from officiating at all marriages – gay and heterosexual – for at least six months.

The law also allows staffers in county register of deeds offices to recuse themselves from issuing marriage licenses, but it requires counties to make other magistrates or staffers available to handle marriage licenses and same-sex weddings in the event of recusals.

Utah and Mississippi also have laws allowing public officials to recuse themselves from performing marriages because of religious beliefs, according to a tally by the National Conference of State Legislatures.

The North Carolina plaintiffs had challenged the law's authorization of magistrates to travel between jurisdictions at taxpayer expense to perform marriages if counterparts in another area all recuse themselves. They also cited the law's provision that allowed restoration of some retirement benefits if a magistrate resigned after gay marriage became legal but was reappointed around when the recusal law took effect.

Two of the plaintiffs are from McDowell County, where all magistrates recused themselves after the state law was passed, requiring North Carolina to pay a magistrate to come several days a week from nearby Rutherford County. Only a fraction of magistrates statewide have recused themselves.

Two of the couples who sued are lesbian. The other plaintiffs are a husband and wife who won a 1978 court ruling against North Carolina magistrates who refused to perform their interracial marriage because of religious beliefs, according to court documents.

A federal judge in North Carolina ruled last year that the plaintiffs hadn't shown direct harm, nor standing to challenge the 2015 law as taxpayers. The 4th Circuit upheld the judge, describing expenditures triggered by the law as only "some token amount of funds."

The North Carolina Attorney General's Office, which defended the law before the 4th Circuit, has said the state worked hard to balance the religious beliefs of public employees and the rights of same-sex couples by authorizing taxpayer funds for the travel needed when magistrates recuse.

North Carolina's Republican state Senate leader Phil Berger, who authored the legislation, issued a statement applauding Wednesday's ruling, noting that none of the plaintiffs was prevented from marrying because of the law: "Once again, a federal court has rejected the idea that exercising one's First Amendment religious freedoms somehow infringes on others' rights."

18 Comments

Please with your WRAL.com account to comment on this story. You also will need a Facebook account to comment.

Oldest First
View all
  • Linda Tally Jun 28, 6:29 p.m.
    user avatar

    NC is full of ordained ministers and way far overly full of non-ordained but claim-to-be--ministers and have state recognition. I'm in complete agreement with the folks who think the magistrates are supposed to do marriages regardless of their own views of the matter, but finding a non-magistrate isn't that hard, is it? Or is it?

  • Kathryn Adams Jun 28, 6:18 p.m.
    user avatar

    View quoted thread


    Will you say the same thing when a magistrate refuses to perform a marriage for someone who's been divorced because they have a deeply held religious belief that second marriages are ungodly? Because that's what SB2 allows magistrates to do.

  • Kel Kel Hayes Jun 28, 5:35 p.m.
    user avatar

    Victory for us straight folks! Somebody listened to OUR rights!

  • Kelly Paris Jun 28, 5:11 p.m.
    user avatar

    View quoted thread


    By all means. And while you're at it, address them to the Supreme Court, who interpret the Constitution and thereby and has ruled in favor of separation of church and state.

  • Clif Bardwell Jun 28, 4:57 p.m.
    user avatar

    View quoted thread


    I'm sorry, I didn't know letters from one citizen to another was considered law. If that's the case, I have a few dozen letters myself that I'd like to submit.

  • Kelly Paris Jun 28, 4:53 p.m.
    user avatar

    "I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' thus building a wall of separation between Church & State." - Thomas Jefferson.

  • Clif Bardwell Jun 28, 4:47 p.m.
    user avatar

    View quoted thread


    Where is this "separation" noted? I keep hearing about it, but all I can ever find is the first amendment that states "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;" No where, as far as my research can find, is there any law that says there is a separation between government and religion.

  • Kelly Paris Jun 28, 3:57 p.m.
    user avatar

    Seems to me if performing same-sex weddings is part of a job description, and it goes against your beliefs, then that job is not for you. Especially since there is separation of church and state.

  • John Archer Jun 28, 3:10 p.m.
    user avatar

    This particular court decision is a technicality, basically saying that the plaintiffs don't have standing to bring the case before the appeals court. It says nothing about the legality of the case itself.

  • Daryl Barefoot Jun 28, 2:29 p.m.
    user avatar

    So they can also refuse bi-racial marriages, 2nd marriages, mixed religion marriages, etc. This could get interesting lol

More...