Raleigh, N.C. — North Carolina Senate President Pro Tem Phil Berger pledged Tuesday to file legislation permitting magistrates and registers of deeds to refuse to marry same-sex couples on religious grounds.
Berger, a Republican, made the announcement at the Rockingham County Courthouse, where a magistrate resigned last week after being told he could not recuse himself on religious grounds from performing same-sex civil marriages.
According to Berger, the courts are required by law to consider alternatives to respect employees' religious beliefs. But instructions issued to counties by the state's Administrative Office of the Courts last week didn't offer any such alternatives. The AOC memo warned that magistrates could be suspended or fined for refusing to perform same-sex marriages.
“The court’s expansion of the freedoms of some should not violate the well-recognized constitutional rights of others,” Berger was quoted in a press release. “Complying with the new marriage law imposed by the courts should not require our state employees to compromise their core religious beliefs and First Amendment rights in order to protect their livelihoods.”
Greg Wallace, a professor at Campbell University's Norman Adrian Wiggins School of Law, said he supports "statutory religious freedom protections for those who are going to be in the unusual position of being forced against their religious convictions to facilitate gay marriage."
"There’s a question as to whether marriage is a power of the magistrate as opposed to a duty of the magistrate," Wallace explained. "If it’s a power, then it can be exercised with discretion."
But state ACLU legal director Chris Brook said such legislation would "pose huge problems."
Brook pointed to the example of two Forsyth County magistrates in 1977 who refused to marry a mixed-race couple on religious grounds. The couple sued, and the magistrates lost.
"State officials don't get to pick and choose which laws they follow. Marriage equality is settled law in North Carolina," Brook said. "As Governor McCrory and other officials have made clear, the highest responsibility of state actors is to uphold the United States Constitution. This is not about an individual’s religious liberty; this is about state officials being bound by their oath to the United States Constitution."
"Could magistrates opt out of interracial marriages? Could Catholic magistrates refuse to officiate civil ceremonies for divorced Catholics?" Brook asked. "It implicitly acknowledges we would have to allow a magistrate to opt out in those scenarios as well."
Wallace said he doesn't believe those scenarios are comparable.
"I think we’ve had a Civil War and three constitutional amendments on the race issue, so I don’t think the race issue is necessarily analogous to the gay marriage issue," he said. "Discretion has its limits. For example, I don’t think a magistrate could refuse to marry a mixed-race couple. But again, I don’t agree that there’s a strong analogy between race and gay marriage."
LGBT advocacy group Equality NC vowed to fight any such legislation, calling it a waste of taxpayer dollars and saying federal law already offers clear legal precedent on the question.
"The issue at hand is not about individuals' rights to freedom of religion, and Berger, as an attorney, should understand the law well enough to know that. The issue at hand is a matter of employees of the state of North Carolina doing their jobs," Equality NC director Chris Sgro said in a statement.
"The measure proposed by Berger and his extreme, anti-LGBT special interests thereby represents an unprecedented overreach that encourages state employees to only follow the laws that they support and is akin to purported religious freedom legislation summarily vetoed by the Republican governor of Arizona," Sgro added. "In even more states, similar legislation has been proposed and failed, flatly rejected by the community, business leaders and fair-minded members of both parties."
Meantime, same-sex marriage opponents applauded Berger for "protecting the religious freedoms of the citizens of North Carolina."
"You shouldn't have to sacrifice your religious beliefs just to keep your job. That's just wrong, and it violates our first freedom--the right to freely exercise your religious beliefs," said NC Values Coalition director Tami Fitzgerald in a statement. "Government was never intended to be hostile to religion, and we agree with Senator Berger that a legislative fix is in order."