Berger says court administrator wrong on magistrates and same-sex marriage

by Lynn Bonner, News and Observer, November 10, 2014.

Senate leader Phil Berger launched a word missile Monday in the ongoing disagreement with the Administrative Office of the Courts over magistrates performing same-sex marriages.

Judge John W. Smith, AOC director, said in a letter to Berger last week that magistrates, who swear an oath to “support the Constitution of the United States,” have duty to perform such marriage after two federal judges declared unconstitutional the state ban on same-sex marriage.

Berger has claimed that federal law and the First Amendment shield magistrates who have religious objections. Smith wrote that Berger may have mislead magistrates into thinking that they can opt out of performing same-sex marriages.

Several magistrates have quit rather than officiate at same-sex ceremonies.

Berger fired back in a letter dated Monday, arguing that Smith is wrong on the law.

“…Your communication lacks any sort of reasonable effort to constructively guide courthouse officials at a time when such leadership is needed most,” Berger wrote.

“Far from misleading anyone, our October 24 letter encourages thoughtful consideration of a sensitive matter of public law. To actively discourage such conciliation is inexplicable.”

Berger has said he will sponsor legislation next session that would allow magistrates and registers of deeds to refuse, for reasons of religious belief, to attend to same-sex couples seeking to marry.