Marriage equality backers accuse Senate chief of 'abuse of power'

Posted October 25, 2014
Updated October 26, 2014

Sen. Phil Berger

— Advocates of same-sex marriage are accusing Senate President Pro Tem Phil Berger of abuse of power and a political "stunt" for his continued fight against same-sex marriage in North Carolina. 

Late Friday, Berger and 27 other members of the Senate Republican Caucus released a letter demanding that the Administrative Office of the Courts retract and revise its directions to magistrates asked to perform same-sex marriage. 

The AOC memo, released Oct. 14, said magistrates could not choose not to perform same-sex marriages on the basis of religious objection to them. It warned that magistrates could be fined or fired for refusing to carry out their job duties.

In the letter to AOC Director John Smith, Berger called the memo "at best incomplete and at worst misleading," saying it "has caused unnecessary confusion and resulted in possible violations of the civil rights of public employees."

According to Berger, R-Rockingham, those employees' religious beliefs are protected by the U.S. and state constitutions' protections of freedom of religious expression. He says "accommodations" can and should be made for magistrates who have religious objections to participating in same-sex marriage. 

"The legal advice the memorandum offers likely exposes North Carolina taxpayers to federal lawsuits by employees whose religious freedom has been compromised," Berger wrote.     

Berger also said this week he intends to file legislation that would offer protection to magistrates and other public employees who refuse to recognize same-sex marriage, despite federal rulings barring those officials from discriminating against same-sex couples. 

Berger and House Speaker Thom Tillis also announced earlier in October that they intend to pursue a legal fight against same-sex marriage. Experts on both sides of the issue say those appeals are highly unlikely to succeed. 

LGBT advocacy group Equality NC called the Senate Republicans' letter to the AOC "a pre-election charade."

"For purely political purposes, Senator Berger tries to dress up discrimination by calling it religious freedom, a stunt the United States Supreme Court has consistently said it won't allow," said Equality NC spokeswoman Jen Jones. "The law is the law, and Mr. Berger, an attorney himself, knows as well as anyone that you don’t get to decide which laws to follow and which ones to ignore."   

The ACLU also weighed in on the letter. 

"All North Carolinians who respect the rule of law should be deeply concerned by Senator Berger’s defiance of the sound advice provided by Governor McCrory and the Administrative Office of the Courts," said ACLU state legal director Chris Brook.

"State officials don't get to pick and choose which laws they follow. Government officials serve all the public; they can’t turn people away just because of who they are or who they love," Brook wrote in a statement to WRAL News. "The heart of this issue is not an individual's religious liberty; it is about government actors respecting the law, doing their job, and treating everyone fairly."


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  • Kaitlyn Legare Oct 27, 2014
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    From 1860 all the way to about 1960 Tills and Berger would have been model southern democrats.

  • Tony Snark Oct 27, 2014

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    As long as it didn't violate the constitution, yes it would be ok.

  • TruDat Oct 27, 2014

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    (A) A Republican Supreme Court justice appointed by Ronald Reagan wrote the DOMA ruling that led to this.

    (B) A Republican Appeals Court judge appointed by George W. Bush voted with a Democratic judge to strike down Viriginia's gay marriage ban.

    C) A Republican NC federal judge agreed with a Democratic NC federal judge that, because of A and B, they had no choice but to strike down NC's gay marriage ban as a matter of law.

    Republican judges, starting with one who prizes individual freedom, have given gay people equal marriage rights. So if it makes you feel better to blame someone for upsetting your apple cart, blame them.

    Meanwhile, if you don't like gay marriage, by all means -- don't have one.

  • bowens44 Oct 27, 2014

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    If they refuse to do the job they were appointed to do they should be fired. Period.

  • teleman60 Oct 27, 2014

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    Gee, I find this also to be the case!

    I find it curious that WE ARE EVEN TALKING ABOUT NC Senate leader Burger SPENDING MONEY HE GAVE HIMSELF THE POWER TO SPEND DEFENDING A LAW That He Created that has been determined BY FEDERAL DISTRICT COURTS AND APPEALS COURTS AND THE US SUPREME COURT (by deferring) to be Unconstitutional.
    I also find it troubling that so many here move to involve themselves in the private matters of other peoples marriages and doctors visits.

    There is no reason for politics to be involved. The people who inject themselves into these matters do so to stir the fires of hatred and intolerance for their own benefit.

  • Joe Crain Oct 27, 2014
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    While I believe we agree on this issue, I am not quite sure if you noticed that I was using that as example to prove a point. The anti-marriage folks would be up in arms about her not marrying these combination of people but yet think that there should be a law allowing people with religious beliefs to NOT perform a civil same sex service.

    It's precisely like when the Buncombe Co Register of Deeds started accepting applications from same sex couples before the ban was lifting (like last year) and they were all screaming for her to be fired because she was not following the law and even though she was following her deeply held personal beliefs.

  • jackaroe123 Oct 27, 2014

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    They have the right to continue believing that marriage equality is wrong. The law is now as it always should have been, meaning the beliefs they have a right to can't be used to deny someone else's rights. There is now a legal right to marriage for gay people. If a magistrate is acting in a legal capacity, he or she has no grounds on which to deny that legal right to others.

  • Matt Wood Oct 27, 2014
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    I'm still waiting on someone to point out the exact passages of the bible that say that two people of the same sex cannot get married, or that someone cannot officiate a same-sex marriage.

  • Fanny Chmelar Oct 27, 2014
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    "Marriage equality backers keep holding up the Constitution, Senate chief still ignores it"

  • Joe Crain Oct 27, 2014
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    I have a friend who is devoutly Catholic. She would like to be a magistrate. It is her deeply held religious belief that non-Catholics cannot marry a Catholic without first converting. Therefore, she will not perform any marriages of Catholics to non-Catholics. Also, she believes that if you are divorced you cannot remarry. Therefore she will not be performing any marriages of any couples where one or both partners have ever been divorced.