@NCCapitol

@NCCapitol

Couples challenge NC magistrate marriage opt-out law

Posted December 9, 2015

— A same-sex couple from McDowell County, an interracial couple from Moore County and two Swain County women engaged to be married filed a federal lawsuit Wednesday challenging a North Carolina law that allows magistrates and county register of deeds employees to opt out of performing marriages for religious reasons.

The three couples are seeking to have Senate Bill 2 overturned and a court order preventing the state from spending any more money accommodating magistrates who refuse to carry out their public duties.

"Senate Bill 2 establishes a religious exemption from the judicial obligation to uphold the federal constitution. This religious exemption permits judicial officials to substitute their own religious beliefs as supreme to their oath to uphold the federal constitution," the lawsuit states. "The legislation’s sole purpose is to advance a specific religious belief about same-sex marriage. Moreover, Senate Bill 2 entangles the state in religious affairs, because it establishes a sincerity test for a magistrate’s religious-based recusal from the duty to perform marriages."

Under the law, which the General Assembly approved in June over Gov. Pat McCrory's veto, magistrates and register of deeds office staffers who object to same-sex marriage can refuse to perform any marriages. The workers don't have to opt out in advance – they can refuse to serve a couple at the time they go to obtain a marriage license or go before the bench for a civil wedding – but the worker opting out would then be barred from performing any marriage for at least six months.

Supporters say the law protects the religious rights of magistrates and county employees, but critics say it allows public servants to decide which of their job duties to perform and for which taxpayers to perform them.

"These are employees of the state of North Carolina in these counties who have sworn an oath to uphold the Constitution and to do this job," said Chris Sgro, executive director of Equality NC. "Taxpayers are paying them. They should serve all the taxpayers equally. They shouldn't be able to select out of part of their job."

The lawsuit alleges that the legislation was introduced merely to circumvent federal court rulings last year that struck down North Carolina's statutory and constitutional prohibitions against same-sex marriage.

Following adoption of Senate Bill 2, all of the magistrates in McDowell County recused themselves from marriage duties, forcing the Administrative Office of the Courts to bring in magistrates from Rutherford County to preside over weddings there, according to the lawsuit.

Kay Ansley and Cathy McGaughey were married in October 2014 after same-sex marriage was legalized in North Carolina, but the lawsuit alleges that they now could face discrimination from local magistrates.

"By opting out of performing marriages, these magistrates in McDowell County and across North Carolina renounced the oath to uphold the United States Constitution, as they rejected and refused to defend, support, uphold and be bound by the Fourteenth Amendment rights of same-sex couples to marry," the suit states. "The gay and lesbian citizens of McDowell County who may need to appear before these oath-renouncing magistrates in other civil or criminal matters do so knowing that every magistrate in McDowell County believes that gays and lesbians are second-class citizens not entitled to Equal Protection and Due Process of law under the Fourteenth Amendment."

Carol Ann and Thomas Person also are plaintiffs to the lawsuit. Two Forsyth County magistrates refused to marry them in 1976 because they held religious beliefs against interracial marriage. Although a federal court order later forced a magistrate to preside at their wedding, the lawsuit contends that Senate Bill 2 would allow magistrates to recuse themselves from marrying other interracial couples.

Senate President Pro Tem Phil Berger, who sponsored Senate Bill 2, said the law has worked well for six months and noted that those challenging it couldn't find a couple to say they had been harmed by it to serve as plaintiffs.

"Every North Carolinian seeking a gay marriage license since Senate Bill 2 became law has received one," Berger, R-Rockingham, said in a statement. "This is just the latest attempt by the far left’s political correctness mob to force their beliefs on everyone else by trampling the First Amendment guarantee of religious freedom.”

The lawsuit also contends that North Carolina taxpayers shouldn't have to pay to cover for magistrates who have recused themselves from performing marriages.

"We are wasting taxpayer dollars to get magistrates from Point A to Point B in order to offer a lesser quantity and quality of customer service on behalf of the state." Sgro said.

31 Comments

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  • Clif Bardwell Dec 10, 2015
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    Nope. The "pursuit of happiness" isn't anywhere in the Constitution. That's in the Declaration of Independence. A great document, no argument, but not, nor was it meant to be, the law of the land. The declaration was only meant as an alert to King George III that, should the treatment of the colonies continue as it had been, the colonies would break from the empire.

    Don't they teach US history in grade school anymore?

  • John Snow Dec 10, 2015
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    Well everyone's job functions change. And when they do, you don't get to choose to do parts of it or not.

  • Arron Lee Dec 9, 2015
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    Wow, some are saying the magistrates should just do their jobs. Well, I bet when they took office, that wasn't on their job description.

  • LetsBeFair Dec 9, 2015

    If this is the meaning of 'happiness' for them in the USA. Our Constitution allows that pursuit. While I'm morally against it it would be wrong to deny one 'happiness'.

  • Bryan Ayers Dec 9, 2015
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    The US wasn't found on the Christian religion. It WAS, however, founded upon what were - for the Day - resoundingly Christian principles.

  • Bryan Ayers Dec 9, 2015
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    Ahh... The old 'do you want to bring back Slavery' argument. Not even a comparison...

  • Bryan Ayers Dec 9, 2015
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    The answer to all of this is simple: Remove Government from the Marriage business. Drop the requirement for a Marriage License. No more need for Public Servants to do something they don't wish to do. Problem Solved...

  • Howard Roark Dec 9, 2015
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    Or forcing people to accept religion governing their rights?

  • Scott Mace Dec 9, 2015
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    NC's sodomy law was invalidated by the Supreme Court Case, Lawrence vs Texas, back in 2003.

    To be fair, it wasn't repealed, its just no longer enforceable.

  • Carl Keehn Dec 9, 2015
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    No, the issue is not about "forcing" people to accept gay marriage. The issue is that a public employee, one that is supported by all taxpayers, cannot pick and choose which taxpayer they choose to serve. If they are a public employee, they need to serve the entire public.

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