More than an opt-out, it's a constitutional cop out
Published March 1, 2015
Editorial by Fayetteville Observer, March 1, 2015.
In this stormy North Carolina winter, you'd think lawmakers would know a slippery slope when they see one.
But they don't. And they may be headed for a spectacular fall.
The bill applies to all marriages but is clearly meant to give cover to court officials who balk at performing same-sex marriages, which court decisions made legal in North Carolina, at least until the U.S. Supreme Court rules later this year.
Some North Carolina magistrates have resigned rather than marry same-sex partners, citing moral or religious objections. That's what they should do, because magistrates swear an oath to uphold the U.S. Constitution, and the courts say actions to prohibit same-sex marriage are unconstitutional. Would we let a cop make such a selective choice in law enforcement? A judge? Not likely.
If the House concurs with this legislation and Gov. Pat McCrory signs it, we expect the next stop will be the federal courts.
Senate leader Phil Berger, who sponsored the bill, casts it as protection of magistrates' and clerks' First Amendment rights. "We're not saying the First Amendment outweighs any other rights that exist," he said. "What we're saying is there should be an accommodation when there is a conflict between rights."
Therein lies the perilously slippery slope. If we exempt magistrates from executing their job description, what's next? Some religions prohibit remarriage after divorce. Can magistrates opt out of them, too? What other religious prohibitions out there might conflict with civil law?
This could go further. Public officials could refuse to provide many services to a couple whose marriage they find objectionable, despite its legality. Those who see the specter of earlier times, when marriage was denied to mixed-race couples, aren't off the mark.
"We do not have the right to pick and choose whom we serve," Sen. Josh Stein, a Wake County Democrat, said. "We're putting ourselves in league with Alabama as the states that refuse to respect the Constitution." Durham Sen. Mike Woodard concurred. "It is an articulately written bill that masks an inarticulate policy of separate but equal."
We'd go further, because it looks more like separate and unequal. It's an attempt to circumvent the courts' binding decision. We hope the House lets it die a peaceful death.
