by Richard Craver, Winston-Salem Journal, June 26, 2015.
The U.S. Supreme Court decision that makes same-sex marriages legal in all 50 states does not directly deal with the North Carolina law exempting magistrates from performing such marriages based on deeply held religious convictions.
But local lawmakers from both parties said today they expect the decision to have an impact on the law, which went into effect June 11 after both chambers overrode Gov. Pat McCrory’s veto of Senate Bill 2.
Rep. Evelyn Terry, D-Forsyth, said the decision makes “it now appear that the new law … is unconstitutional.”
Rep. Donny Lambeth, R-Forsyth, said “it certainly would seem that the Supreme Court decision would have some potential impact on the N.C. magistrate exemption.”
A joint statement from House Speaker Tim Moore, R-Cleveland, and Senate President Pro Tem Phil Berger, R-Rockingham, did not deal with the magistrate law.
“The majority of North Carolina voters who define marriage as between one man and one woman deserved a final resolution from the Supreme Court,” Berger and Moore said in the statement. “While this decision is disappointing, we respect the ruling and will continue to work to ensure North Carolina complies with the law of the land.”
When asked about a potential direct impact on the new law, Berger said in a statement that “Senate Bill 2 ensures the rights of all North Carolinians are respected, including constitutionally protected religious freedoms and the right to marry as granted by the courts, so nothing has changed.”
McCrory did not discuss Senate Bill 2 in a brief statement.
“Like many North Carolinians, I still believe the definition of marriage should be determined by the states, and it should be the union between one man and one woman,” McCrory said. “However, I took an oath to uphold the constitution, which compels me as governor to ensure that North Carolina upholds the rule of law.”
Some advocacy groups say they are hopeful that Republican legislative leaders will react to the decision as they did June 18 when the House and Senate approved a major change to the state’s voter identification law by passing House Bill 836.
“It is too early to tell if the General Assembly might make some changes to the magistrate bill,” Lambeth said. “But I am sure it will be looked at to make sure it remains a viable option for those who have a religious objection.”
Rep. Ed Hanes, D-Forsyth, said he believes “proponents of the magistrate law will claim they are separate claims/legal cases.”
“The reality is that before the Supreme Court ruling, gay marriage was not constitutionally protected. That is no longer the case. Those magistrates swore to protect and uphold the constitution, and therein those rights that have been determined to be protected under the document. Case closed.
“Magistrates may object, but they may not deny a constitutionally protected right by trying to invoke the establishment or free exercise clause.”
Rep. Larry Hall, D-Durham, said the decision “is a victory for equality and we will remain vigilant in North Carolina to ensure that new legislation is not passed to allow discrimination on the behalf of a radical agenda for any reason.”
“Republicans legislated discrimination in Senate Bill 2 and created a safe haven for it. What additional procedural fraud will they resort to in subsequent litigation and noncompliance with the law?”
John Dinan, a political science professor at Wake Forest University, said some tea leaves can be found from the majority opinion from Supreme Court Justice Anthony Kennedy and a dissenting opinion from Chief Justice John Roberts.
“Justice Kennedy commented in a very general fashion on other possible consequences of the ruling, such as for religious-conscience laws,” Dinan said.
Kennedy wrote “it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advo¬cate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.
“The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons.
“In turn, those who believe allowing same-sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate.”
Kennedy stressed the Constitution “does not permit the state to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.”
Roberts’ dissent cited that “hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage.”
“For example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. There is little doubt that these and similar questions will soon be before this court.”
Mitch Kokai, a policy analyst for the right-leaning John Locke Foundation, said those who criticized Senate Bill 2 “will almost certainly point to the U.S. Supreme Court’s ruling as an additional reason to bolster their case.”
“But the bill dealt with a separate issue involving the balance between magistrates’ First Amendment rights and same-sex couples’ ability to get a government service guaranteed to any qualified couple.
“Senate Bill 2 will likely go to court for resolution of this separate issue.”