Couples challenge NC magistrate marriage opt-out law

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.