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Next up in the House: Another lawsuit waiting to happen

SM-SB2-B [1]

Editor’s note: Governor Pat McCrory issued a veto for SB 2 on Thursday, May 28th. The Legislature may attempt to override his veto.

North Carolina poised to become the nation’s first state with a law allowing public officials to refuse to marry same-sex couples on religious objection grounds

The bill allowing magistrates to refuse to perform otherwise lawful marriages based upon religious objections moves on in the House today after passing the Senate in February, set for a hearing in Judiciary Committee I just after noon.

Senate Bill 2 [2] — a product of the dust-up over federal court rulings allowing same-sex marriages to proceed in North Carolina – would give refuge to magistrates who refuse to comply with those rulings under color of their professed faith.

Though lawmakers couched their text in broad and vague terms, their intent in pushing the bill was clear: Stop gay marriages.

“Our society has been thrown a curve ball by the decision of some judges, so now it falls to us to figure out how we’re going to accommodate peoples’ sincere religious beliefs and religious freedom,” bill co-sponsor Sen. Buck Newton said during committee hearings back in February.

If the bill passes in the House and becomes law, it would be the first of its kind in the country, according to Katharine Franke, a professor at Columbia University School of Law and director of its Center for Gender & Sexuality Law.

(A similar bill in Texas recently failed [3] after corporations there voiced their opposition.)

And in the eyes of legal experts, it would be unquestionably unconstitutional.

“There’s very strong Supreme Court and other precedent that says public officials can’t pick and choose which laws they’ll comply with,” Franke said.


Gay marriage opponents here wasted little time protecting their turf once federal law began turning against them.

In late July, the 4th U.S. Circuit Court of Appeals in Richmond overturned a Virginia marriage ban, and on October 6 the U.S. Supreme Court refused to review that decision – letting the lower appeals court ruling stand as the law here and elsewhere in the circuit.  Four days later federal district judges here began applying that ruling to North Carolina’s similar law and allowed same-sex marriages here to proceed.

Magistrates and other public officials then unsuccessfully pushed the state’s Administrative Office of the Courts for permission to refuse to perform same-sex marriages on religious objection grounds.

“If a valid marriage license is presented, it is a statutory duty of the magistrate to conduct the marriage between the persons named in the license in the same manner as the magistrate would conduct any other marriage,” AOC legal counsel Pamela Weaver Best, advised [4] state court officials in a mid-October memo.

“A failure to do so would be a violation of the U.S. Constitution under the federal ruling, and would constitute a violation of the [judge’s] oath and a failure to perform a duty of the office.”

In a letter sent days later, Senate Leader Phil Berger and a majority of the Senate GOP caucus asked AOC Director John Smith asking to reconsider that position.

“Failure to acknowledge the freedom of religious exercise afforded to all North Carolinians by the First Amendment and by the North Carolina Constitution is a serious oversight that has grave repercussions for our State and the public officials being told to follow the advice provided in the memorandum,” Berger wrote.

But Smith reiterated the AOC position in a November letter [5] and reminded state officials that they were bound to comply with the law as decided by the federal courts.

“The law is now clear that any magistrate who does officiate over marriages must comply with the court rulings mandating equal treatment as to same-sex marriages,” Smith wrote.

Some magistrates then filed suit [6] and others resigned.

And in January Berger made the magistrates’ right to recusal bill the second bill filed in the new legislative session.


Senate Bill 2 provides that upon written notice magistrates may recuse themselves from performing civil marriages based upon “sincerely held religious objections.”

Registers of deeds may do the same with respect to issuing marriage licenses. As to both, the recusal remains in effect for at least six months and applies to all marriages.

What constitutes “sincerely held religious objections” is not specified, and the bill’s critics say that creates an impermissible slippery slope.

“Senate Bill 2 is designed to deny gay and lesbian couples the freedom to marry, but it is so broadly written that it would also allow court officers to deny services to interracial couples, interfaith couples, and others,” said Sarah Preston, Acting Executive Director of the ACLU of North Carolina.

Several senators expressed that concern during debate on the bill.

“The bill doesn’t specify that a sincerely held religious objection has to be on the basis of performing a same sex marriage, so could the objection be on the basis of performing an interracial marriage, or a marriage of people of two different faiths,” Sen. Jeff Jackson asked.

Sen. Josh Stein speculated that the religion exemption could arguably be extended to state employees refusing to process tax returns of same-sex couples and beyond.

The bill also taxes local resources and creates the possibility that some smaller counties might have no magistrates available to perform marriages.

As the ACLU points out in this fact sheet [7], more than 15 counties here have only three magistrates on staff.

“No couple should have to spend their wedding day rushing from one courthouse to another trying to prove they meet the religious criteria of a magistrate just to get a marriage license,” Preston added.


The sponsors of Senate Bill 2 cite the First Amendment free exercise of religion clause and the right to religious accommodations under the Civil Rights Act in support of the bill, which passed largely along party lines in the Senate in February.

But constitutional scholars say the established law weighs heavily against those arguments.

In a memo [8] released by Columbia’s Public Rights/Private Conscience Project in November, several law school professors offered these reasons why: