Senate set to allow officials to opt-out on some marriages

by Lynn Bonner, News and Observer, February 24, 2015.

An effort to give state officials who object to gay marriages a legal means to avoid serving same-sex couples passed its first legislative hurdle Tuesday.

A state Senate committee approved a bill that would allow magistrates to declare that they will not perform any marriages based on “sincerely held” religious objections. The bill would not require a detailed explanation of the religious objections, but sponsors assert that the requirement to opt out of presiding at any marriages means the proposal is not discriminatory.

Register of deeds staff members could recuse themselves from issuing licenses, as well, under the bill.

The sometimes-tense debate on Senate Bill 2 on Tuesday reopened fissures on the divisive social issue, revealing questions that remain unsettled months after federal courts allowed gay marriages in the state.

“We’ve been thrown a curveball, and I think our society has been thrown a curveball by the decision of some judges in the federal courts,” said Sen. Buck Newton, the Wilson Republican who presented the bill in committee. “So it now falls to us to figure out how we’re going to accommodate people’s sincere religious belief and religious freedom and still comply with court orders and make sure the law is followed.”

The bill’s supporters said it would protect magistrates’ religious rights while guaranteeing gay couples can marry in any county. The bill requires that counties must make available an official who will perform marriages for a minimum number of hours each week.

“Folks, regardless of their claimed sexual orientation, would be able to be married under these rules,” Newton said.

Opponents said the bill is discriminatory and might be unconstitutional.

Sen. Angela Bryant, a Rocky Mount Democrat, questioned the new limits the bill would allow for performing marriages. The bill sets a minimum of 10 hours over three days for marriages to be available to be performed in any county.

“I’m worried that that exposes us legally,” she said.

The bill also might “open the door for discrimination,” she said, because it does not say when a magistrate must make it known they are recusing themselves.

This was the first legislative debate on the bill, which Senate leader Phil Berger sponsored. The bill next moves to a vote of the full Senate.

Same-sex marriage has been legal in the state since mid-October, when U.S. District Judge Max Cogburn nullified the state’s voter-approved ban. His ruling followed a 4th U.S. Circuit Court of Appeals decision to strike down Virginia’s gay marriage ban. The 4th Circuit court has jurisdiction over North Carolina.

In the aftermath, some magistrates resigned because they objected to officiating at same-sex ceremonies. The Administrative Office of the Courts distributed a memo saying it is magistrates’ duty to comply with court orders requiring equal treatment.

Newton said the legislation altering the requirements of the job had to be filed because the AOC would not make accommodations for magistrates who objected on religious grounds to officiating at same-sex weddings.

A former Moore County magistrate has filed a lawsuit contending the requirement to perform same-sex ceremonies violated his rights.

A spokeswoman for the AOC said the office could not comment on the committee discussion because of the pending lawsuit.

Under the bill, every magistrate would have the right to opt out of performing all marriages based on “sincerely held religious objection.” Assistant and deputy registers of deeds can opt out of issuing all marriage licenses. Chief district judges would be responsible for making sure all couples with licenses are able to marry. Registers of deeds would be responsible for making sure applicants get licenses.

If all magistrates in a jurisdiction opt out of performing ceremonies, the AOC would be responsible for making sure magistrates are available to officiate at appointed times.

Legislation similar to Berger’s – and others that seek to bar state officials from issuing marriage licenses to same-sex couples – have been filed in Texas, Utah and South Carolina, according to the American Civil Liberties Union. None has passed.

Democrats raised a number of questions about the proposal’s legality.

Sen. Jeff Jackson, a Charlotte Democrat, brought out through questions that the bill does not specify what the court officers might be objecting to when they refuse to marry a couple.

He asked: Could the objection be to interracial marriage or marrying people of different faiths?

The committee’s staff attorney said the bill does not specify reasons that qualify for objection.

In an interview, Berger said magistrates will have to decide once the bill is passed whether or not they’ll perform marriages.

If they decide not to recuse themselves within a certain time frame, the Eden Republican said, magistrates would have to perform ceremonies for couples with licenses. They won’t pick and choose, he said. “It’s not a one-off,” he said.

He also rejected the idea that magistrates would use the law to get out of officiating at interracial or interfaith marriages.

“That’s not what this bill is about,” Berger said. “I reject that characterization.”