Despite accusations of hostility toward homosexuals and discrimination on the level of Jim Crow, the North Carolina House of Representatives approved a bill that allows magistrates to recuse themselves from performing marriages due to sincerely held religious objections to same-sex marriage. After more than two hours of passionate debate, the House passed Senate Bill 2 in a 65 to 45 vote Wednesday.
The bill was sponsored by Sen. Phil Berger (R-Rockingham) after the N.C. Administrative Office of the Courts (AOC) sent a memo to magistrates last year, telling them that any failure to conduct marriages of all couples would violate their oath of office and constitute a failure to perform a duty of the office. “For these reasons, all magistrates must treat same-sex marriages for which a marriage license has been issued by the Register of Deeds the same way that marriages between a man and a woman are scheduled and conducted.”
Magistrates Ejected from Civil Service
Anyone who refuses to perform same-sex marriages—even for religious reasons—could be suspended, removed from office, and potentially face criminal charges. Under current law, then, basically any magistrate who has religious objections to same-sex marriage should resign.
This happened to several magistrates as they were forced to leave their jobs rather than face termination or punishment. Two magistrates are now suing the AOC under the N.C. Constitution, which states that “all persons have a natural and inalienable right to worship Almighty God according to the dictates of their own consciences. . . . No person shall be denied the equal protection of the laws; nor shall any person be subjected to discrimination by the State because of race, color, religion, or national origin.”
In a stand for freedom of religion and to push back against the AOC’s refusal to accommodate the magistrates, Berger sponsored Senate Bill 2 that would allow them to recuse themselves from participating in all marriage ceremonies (not just same-sex ceremonies) while ensuring the rights of same-sex couples to get married by making sure that a magistrate or district judge will be available to perform the ceremony.
The bill is based on the Government Employee Rights Act that protect employees from being disciplined or fired for refusing to perform a duty that violates their religion.
Not Just Same-Sex Marriages
Every magistrate has the right to recuse from performing all lawful marriages under this Chapter based upon any sincerely held religious objection. Such recusal shall be upon notice to the chief district court judge and is in effect for at least six months from the time delivered to the chief district court judge. The recusing magistrate may not perform any marriage under this Chapter until the recusal is rescinded in writing. The chief district court judge shall ensure that all individuals issued a marriage license seeking to be married before a magistrate may marry.
If, and only if, all magistrates in a jurisdiction have recused under subsection (a) of this section, the chief district court judge shall notify the Administrative Office of the Courts. The Administrative Office of the Courts shall ensure that a magistrate is available in that jurisdiction for performance of marriages for the times required under G.S. 7A-292(b).
The authority granted to magistrates under G.S. 51-1 and subdivision (a)(9) of this section is a responsibility given collectively to the magistrates in a county and is not a duty imposed upon each individual magistrate. The chief district court judge shall ensure that marriages before a magistrate are available to be performed at least a total of 10 hours per week, over at least three business days per week.
Despite the plain language of the bill that accommodates the religious beliefs of public officials and respects the rights of same-sex couples to get married, representatives who opposed the bill said it is subversive and gives public officials permission to discriminate.
Equal Access to Marriage Ceremonies
Rep. Grier Martin (D-Wake), who accused the Republicans of rushing the bill through without due deliberation, said the bill is “couched in terms of equality,” but that’s only “window dressing” for discrimination, forcing same-sex couples to possibly wait to get their marriage license if a magistrate isn’t available.
Martin fails to appreciate that if a magistrate has recused himself and another isn’t available, heterosexual couples will be just as affected since the magistrate has removed himself from performing all marriages.
Rep. Henry Michaux (D-Durham) argued that if a magistrate can’t fulfill the obligations of his oath, then he shouldn’t take the job in the first place. Ssuch a position would, in effect, disallow religious people from holding public office. The bill seeks to remove any conflict by accommodating employees with religious objections. As Rep. Paul Stam (R-Wake) said, “People who want to get married can get married. They will not face discrimination. Magistrates might decide not to perform marriages at all. That’s their decision.”
Rep. Sarah Stevens (R-Surry) was quick to remind her colleagues that magistrates are given the authority to perform marriages, but it is not a required duty. Since it is not a requirement of their position, they are not “refusing to do their job,” as some of the representative stated.
Deep Feelings on Both Sides
Rep. Larry Pittman (R-Cabarrus) urged his fellow congressmen to vote for the bill because it has broader implications in the protection of pastors and clergy who refuse to perform same-sex marriage ceremonies. Religious freedom is a fundamental right, and people of conscience should not be compelled by the state to violate their religious beliefs, he said.
The most heated moments in the debate came after Rep. Bert Jones (R-Rockingham) accused the Left of attacking the institution of marriage and rejecting God’s will that marriage be between a man and a woman. If there’s any discrimination, it’s against the family, Jones said. “This is a war against the family, and if you can water it down, then it means nothing.”
Several Democrats responded with barely contained anger, saying proponents of the bill had no right to imply that those who oppose it don’t believe in God or that the Left opposes the family.
Others argued that God is love, and the loving thing to do is to perform marriage ceremonies for homosexuals; to do anything else shows animus toward them and undermines current laws that support same-sex marriage, they said. One congressman even chided the Republican-led House for daring to bring up this issue after Ireland had approved same-sex marriage and prior to the U.S. Supreme Court taking up the issue.
Rep. Dean Arp (R-Union) reminded his colleagues that the bill still allows for same-sex couples to get their marriage licenses. “This is not discriminatory,” he said. “This bill brings a balance to a difficult situation. These people [the magistrates] were in office prior to the law changing. They didn’t change. The law changed on them.”