@NCCapitol

@NCCapitol

Traditional marriage backers urge registers of deeds to follow their conscience

Posted October 17, 2014 5:46 p.m. EDT
Updated October 17, 2014 11:39 p.m. EDT

— One of the groups that fought to pass an amendment to the state constitution that had the effect of banning same-sex marriages has circulated a legal memo saying that registers of deeds and their staffs cannot be forced to issue marriage licenses that conflict with their religion.

"There are statutory and constitutional protections available for any Register of Deeds or staff member whose strongly held religious beliefs would make them refrain from issuing marriage licenses to same-sex couples," Tami Fitzgerald, executive director of the North Carolina Values Coalition, wrote in an email Friday. "They can claim their First Amendment right not to violate their religious beliefs."

The memo was drafted by Alliance Defending Freedom, although it was not attributed to a specific attorney or other individual. According to the group, it was founded in 1994 and "has made a significant impact for God’s Kingdom through its winning legal efforts to preserve religious freedom for people of faith."

In its memo, the group offers legal help to registers of deeds who feel they are being forced to act contrary to their conscience.

"The full legal impact of the Fourth Circuit’s decision, including whether it undermines other traditional restrictions on marriage, like bigamy or consanguinity, is not yet known," reads the memo. "Some registers of deeds might believe that they face a serious dilemma: either resign their positions or violate their sincerely held religious or moral beliefs about marriage by being forced to issue marriage licenses to relationships inconsistent with those beliefs. But registers of deeds, as explained herein, can resolve this potential conflict."

The memo specifically suggests appointing a deputy within the office to handle marriage licenses when such a conflict arises.

Chris Sgro, executive director of Equality NC, a group that opposed the marriage amendment and helped push for its defeat in the courts, said a pair of federal court orders "enjoins both the state and those employees from enforcing Amendment One in any way."

He described the Alliance's memo as "intentionally misleading," pointing to a directive on the topic issued to magistrates by the state's Administrative Office of the Courts earlier this week.

"I don't believe there's a reasonable legal argument to be offered on not conducting marriages," Sgro said.

ACLU state legal director Chris Brook said opponents of same-sex marriage have tried the same gambit unsuccessfully in other states. 

"This is because, in the words of Justice (Antonin) Scalia, writing for the court majority in Employment Division v. Smith, 'Supreme Court jurisprudence has consistently held that the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes),'" Brook explained to WRAL News. 

Referring to the oath registers of deeds take when they're sworn into office, Brook added, "This is especially the case with state actors whose first responsibility is to uphold the U.S. Constitution, now definitively interpreted in North Carolina to allow the freedom to marry."

"As Governor McCrory and other officials have made clear," Brook wrote, "Federal courts have agreed that the 14th Amendment's guarantee of equal protection under the law for all citizens includes the right of gay and lesbian citizens to marry the person they love. The law is clear, and all state officials are bound to respect it."

"This has nothing to do with personal religious beliefs," added Sgro. "I fully support individual's rights to their beliefs. This is about doing a job. Good, hardworking North Carolinians know that every job has requirements. These are state employees, and it is their job to issue licenses to same-sex couples and conduct same-sex marriages the same as they would for opposite-sex couples."