Can Marry or Must Marry?

Published October 24, 2014

By Tom Campbell

by Tom Campbell, Executive Producer and Moderator, NC SPIN, October 23, 2014.

At least two North Carolina magistrates have resigned rather than perform same-sex marriages, citing conflicts with their religious beliefs. It raises a very intriguing question: Must these officers of the District Court be required to marry anyone with a valid marriage license or do they have authority to do so, but also some discretion as to whom they marry?

North Carolina statutes say that to be legal marriage can be officiated by either a magistrate or a duly licensed pastor. Each county has at least one magistrate, chosen from a list of persons nominated by the clerk of superior court and appointed by the senior resident Superior Court Judge for an initial two-year term, then eligible for reappointment for four years. Statutes speak to a magistrate’s qualifications, salaries, work schedules and duties, including performing civil marriages.

The Administrative Office of the Courts (AOC) believes this a duty of magistrates. Last week the AOC sent letters to all the state’s magistrates informing them they were required to perform same-sex marriages. Pamela Weaver Best, general counsel for the AOC, said in that letter, "A failure to do so would be a violation of the U.S. Constitution under the federal ruling, and would constitute a violation of the oath and a failure to perform a duty of the office." Magistrates could be suspended or dismissed for refusing to do so.

But what if a couple, regardless of sexual persuasion, asked a magistrate to perform a ceremony at 6 a.m., on a day when the magistrate wasn’t working, or made other unusual requests? Would the magistrate be allowed to refuse? If so, would this acknowledge marriage is not a duty but a discretionary power?

Many religious denominations are currently asking similar questions. For instance, the United Methodist Church has in its Book of Discipline specific language that forbids their pastors permission to conduct same-sex marriages. Not to single out the Methodists, but perhaps you remember the United Methodist pastor who married his son to another man and was defrocked. He was later reinstated, but understand this debate is reverberating throughout the faith community.

Senate President Pro Tem Phil Berger says he is going to introduce legislation to give magistrates marriage discretion on religious grounds. But if magistrates have this discretion over marriages could they have selective enforcement of other duties because of religious convictions? Where does discretion begin and end? Perhaps Berger’s legislation to remove the requirement, if indeed the courts agree there is one, could also add judges, who are currently not allowed to perform civil unions.

Here’s our conundrum. We believe magistrates, as officers of the court, have the responsibility to abide by and uphold the law. The Supreme Court says same-sex marriage is legal. But, and this is a big but, we also fervently defend a person’s right to hold and exercise his or her religious convictions.

The courts will no doubt decide this matter but there might be some appropriate case law. In 1977, two Forsyth County magistrates refused to marry a mixed-race couple on religious grounds. The couple took them to court and won.

A new reality settled in after that decision and the same will happen with same-sex marriages. But few believe settling into this new reality will be smooth and easy.



October 24, 2014 at 11:06 am
Richard Bunce says:

The magistrate as government employee/representative can either perform as required or resign. A pastor, even if unfortunately licensed by the State, would have a choice I believe as I believe they should for any religious ceremony for any reason.

October 24, 2014 at 1:15 pm
David Coster says:

Don't believe the Supreme Court has taken an official position...only left standing opinions of lower court judges. Not exactly the same. It is time for them to weigh-in definitively.

More importantly you used both the words "marriage" and "civil unions." While some may equate the two, I do not. In my view much could be gained by leaving marriage as a religiously defined term and referring to all recognized domestic relationships as "civil unions" or "domestic partnerships." Personally, I do not care whether the state considers my wife and I to be married or in a domestic partnership, yet I do care a great deal about how my church views the subject.

October 24, 2014 at 3:41 pm
Johnny Hiott says:

The mis-named supreme court has not said that same sex marriage is legal that I can remember. What they did was commit dereliction of duty by refusing to hear cases from lower courts thereby allowing it to happen. As has happened many times in the last appx. 114 years they simply refuse to uphold the law of the land. They should be removed from the court for the crimes they have committed against this nation.