A win for religious rights—North Carolina magistrates can opt-out of marrying same-sex couples

North Carolina legislature overrides Governor Pat McCrory’s veto of the anti-gay religious freedom bill

Photo by shizzy0 (Flickr)

Back in the fall of 2014, North Carolina joined the majority of the country in legalizing gay marriage.  As reported in the Campbell Law Observer, immediately after this decision a same-sex couple faced discrimination by a Pasquotank County magistrate.  It was at that moment the debate in North Carolina began, gay rights versus religious rights.  It seems the North Carolina legislature has answered this questions—religious freedom wins.

The official battle began on January 28, 2015, when the North Carolina senate filed Senate Bill 2.  According to this piece of legislation, North Carolina magistrates will be allowed to “recuse themselves” from performing any marriage due to their religious beliefs.  The bill was introduced by Senate Leader Phil Berger who stated, “[i]f someone takes a job, they do not park their First Amendment rights at the door, and they are entitled to continue to exercise those rights.”

“[N]o public official who voluntarily swears to support and defend the Constitution and to discharge all duties of their office should be exempt from upholding that oath.”

After making its way through the North Carolina legislature, Senate Bill 2 was presented to Governor Pat McCrory on May 25, 2015.  Three days later, Governor McCrory vetoed the bill.  In doing so, McCrory stated that although he recognizes that opinions on same-sex marriages stems from “sincerely held religious beliefs,” still “we are a nation and state of laws.”  He continued to say that “no public official who voluntarily swears to support and defend the Constitution and to discharge all duties of their office should be exempt from upholding that oath.”

The oath that McCrory is referring to is the same oath that all magistrates take when they become employed by the state of North Carolina—to “faithfully and impartially discharge all the duties” and to “administer justice without favoritism.”  Therefore, although the First Amendment protects the religious freedom of individuals as citizens, until Senate Bill 2, all state employees were at least expected to perform their job—one that is funded by taxpayers, including LGBTQ taxpayers.

On Thursday, June 11, 2015, Governor McCrory’s veto was overridden by NC legislatures, which will allow magistrates to soon opt-out of performing same-sex marriages. 

The North Carolina legislature disagrees.  In order for the bill to become law after Governor McCrory’s veto, both the Senate and the House of Representatives had to vote, with three-fifths majority, to override the veto.  The Senate first overrode the veto with a 32-16 vote on June 1, 2015.  A week later, the House overrode the veto with a 69-41 vote.  On Thursday, June 11, 2015, Governor McCrory’s veto was successfully overridden by NC legislatures, which will allow magistrates to immediately opt-out of performing same-sex marriages.  This is a first of its kind piece of legislation; no other state has a law that allows a state employee to opt-out of performing their duties.

Not only do magistrates get to recuse themselves from performing same-sex marriage ceremonies, the bill also allows registers of deeds to refuse to issue marriage licenses.  But House Speaker Tim Moore assured that in the event all magistrates decided to recuse themselves, there will still be magistrates “available in all jurisdictions to perform lawful marriages.”

It allows state officials to not only opt-out of performing same-sex marriages, but they can also opt-out of performing any marriage. 

The bill includes a provision that allows a magistrate to excuse himself from performing a marriage, at any time.  This means that, a same-sex couple could walk through the courthouse doors, ready to get married, and at that very moment, the magistrate can assert the religious objection and not perform the marriage.  This is problematic because gay and lesbian couples do not receive any notice that there marriage will not be able to be performed since the magistrate can assert the religious objection at the very last second.  As Sarah Preston, acting executive director of NCACLU, explains “[n]o 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.”

Most controversial of all, the bill has very broad language.  It allows state officials to not only opt-out of performing same-sex marriages, but they can also opt-out of performing any marriage.  Effectively, the bill seems to be taking us back in time, before we had Loving v. Virginia, and allowing a magistrate to deny performing a marriage between interracial couples or interfaith couples, as long as they have a valid religious objection.

[M]agistrates have religious rights that should not be denied just because they are state employees.

Many proponents for the bill argue that magistrates have religious rights that should not be denied just because they are state employees.  After all, almost half of our states have a Religious Freedom Restoration Act (RFRA), which allows laws that substantially burden the free exercise of religion, like those allowing same-sex marriages to be performed, to be exempt from the compelling interest test.  This type of legislation is how Indiana, and all of the controversy that came with it, to pass laws allowing discrimination against same-sex couples.  The problem is that North Carolina did not pass a state RFRA, so essentially Senate Bill 2 is another way to allow religious freedom to prevail.

Michigan legislature seems to be in agreement with North Carolina.  On June 11, 2015, Michigan governor signed new law that allows faith-based adoption agencies with state contracts to decline participation in referrals due to religious objections.  Similar to North Carolina and Indiana, critics say this law allows discrimination against gay and lesbian couples.

Just like Indiana’s RFRA controversy that pushed many companies to threaten to move their business elsewhere, this North Carolina bill is essentially a retaliation that invites disaster. 

Just like Indiana’s RFRA controversy that pushed many companies to threaten to move their business elsewhere, this North Carolina bill is essentially a retaliation that invites disaster.  One potential backlash is that companies, just like in Indiana, can threaten to leave North Carolina because of the possibility of discrimination allowed through Senate Bill 2.

Additionally, the new bill will likely end up in Court, as it involves constitutional arguments on both sides.  There is religious freedom for magistrates and registers of deeds, with legitimate religious objections to certain marriages on one side.  Then there is the right to marry for same-sex couples, which is now a recognized right by our Fourth Circuit court, and may very well be a recognized right by the United States Supreme Court very soon, on the other side.  If Senate Bill 2 holds up, that right to marry will not be equal to the same right of a straight couple.  Nor will the right to marry for interracial couples be the same as the right to marry between an all-White couple.

The most problematic effect of North Carolina’s new law is the potential downward spiral.  This bill could lead to other bills that allow discrimination against gay and lesbian couples.  And while our nation is awaiting one of the biggest Supreme Court decisions to affect the gay community, North Carolina seems to be heading down the wrong side of history.

Ana Hopper, Editor-in-Chief Emeritus
About Ana Hopper, Editor-in-Chief Emeritus (33 Articles)
Ana Hopper is a 2016 Campbell Law graduate and served as the Editor-in-Chief of the Campbell Law Observer for the 2015-2016 academic year. She is originally from Winston-Salem and graduated from the University of North Carolina at Charlotte in 2012 with a Bachelor of Arts in Political Science and Sociology. The summer following her first year of law school, Ana worked as a research assistant for Professor Amy Flanary-Smith. Ana also interned at the Criminal Appellate Section of the Department of Justice her second year, and at the New Hanover District Attorney's Office as an intern the summer before her third year. She served as a Legal Research and Writing Scholar, Vice President of BLSA, and Community Chair of Lambda during her time at Campbell.
Contact: Email