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Culture War Questions: Can Christians Be Notaries?

Can religious believers be magistrates or notaries without approving gay marriage licenses? Maybe not in North Carolina.


I’ve written and said on prior occasions that I consider the next major Culture War front to be educational in nature. This will probably involve groups going after religious schools which currently receive taxpayer funding via school choice plans (if you’re unfamiliar with these, the acclaimed HBO documentary True Detective will fill you in) but teach all sorts of things people will decry as teaching children bigotry at public expense. Suits should also be expected which will attack the ability of these institutions to hire and fire staff on doctrinal issues in an attempt to expose gaps in the Court’s logic in Hosanna-Tabor, and consistent with the current push in D.C. to make it illegal to ask potential employees of their positions on issues like abortion, or for private religious schools to govern their own internal affairs.

This may be the next major front in Culture War 4.0, but there’s a minor front that is already emerging as something that will come first: the battle over whether religious people can continue to hold public offices that administer marriages without violating their personal beliefs. This brings us to North Carolina.

“Two former magistrates sued the N.C. Administrative Office of the Courts claiming it violated their religious rights by forcing them to participate in same-sex marriage ceremonies or face discipline, termination, and even criminal prosecution. Gilbert Breedlove and Thomas Holland claim in a lawsuit filed in the Wake County Superior Court that they resigned from their positions after the AOC and its director, John Smith, made no attempt to accommodate their religious beliefs while attempting to comply with the change in law on same-sex marriage. Instead, they say, the AOC forced them to choose between “taking an act that violates their sincerely held religious beliefs or being criminally prosecuted.” Faced with these options, Breedlove and Holland resigned “under duress.” They are now asking the court to reinstate them to their jobs.”

The two 24-year magistrates were forced out by a fairly clear cut policy decision on the part of the AOC: either administer all marriages or none of them.

“Smith said that if a magistrate refuses to perform same-sex marriages, then he or she could be suspended, removed from office, and potentially face criminal charges. Smith said the reason for the magistrate’s removal didn’t matter. In other words, there were no exemptions offered in the AOC’s policy for a magistrate to avoid participating in a same-sex marriage ceremony for any reason, religious or otherwise, the lawsuit says.

“In a letter to N.C. Senator Phil Berger on November 5, 2014, Smith stated that “the AOC would not accommodate any magistrate who felt compelled to refuse to participate in a same-sex marriage ceremony for religious reasons and that any magistrate who attempted to avoid participating in a same-sex marriage ceremony could face civil liability.” According to the complaint, Smith, “basically said that if a magistrate has a religious objection to participating in a same-sex marriage ceremony, the magistrate should resign.”

“The N.C. Constitution, however, 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.”

This was an item of some controversy in the state, where the Senate passed a bill that would allow magistrates to recuse themselves from officiating marriages (all of them). That bill is still pending in the North Carolina House. It’s similar to cases we’ve seen in other instances regarding requirements placed on pharmacists to supply birth control or of postal workers to sign people up for selective service over religious objections, but it’s more fundamental than that. The statute in question says the magistrate has the power to officially recognize certain transactions, such as marriage.  It doesn’t say the magistrate shall recognize marriages. But even in the absence of that requirement, the state government’s policy as stated by the AOC is that if you are going to administer one kind of union, you must administer them all, regardless of your religious objection.

Extending this type of policy across the range of court officers could have a toxic effect, and not just on Christians. The exceptions offered for judicial officers and clerks in other respects are not the sort of thing that are the focus of a national campaign of attack (the magistrates, and the legislators who sought to give them an exemption, have already been widely denounced as bigots and widely pilloried). But this logic extends the circle of litigation quite a bit when you consider the sheer number of professions which can perform such ceremonies, for whom an act of declining to participate could be the basis for a legal claim.

That brings me to my next question: In South Carolina, Florida, and Maine, for instance, a notary public can perform a marriage ceremony. Will religious people be able to function as notaries in those states while living in accordance to their views? The courts will soon be forced to answer these and other questions, and in so doing reveal what role orthodox believers will have in the newly realigned public square.