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

Posted October 25, 2014 4:41 p.m. EDT
Updated October 26, 2014 12:34 a.m. EDT

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."