The leader of North Carolina’s State Senate says he will introduce legislation to allow public officials to refuse to conduct same-sex weddings if doing so would conflict with their religious beliefs.
Phil Berger, who is joining House Speaker Thom Tillis in appealing a federal court ruling striking down the state’s anti–marriage equality law, made the pledge Tuesday in response to the action of a magistrate in his home county, Rockingham, who resigned rather than conduct same-sex marriages, The News & Observer of Raleigh reports.
“The court’s expansion of the freedoms of some should not violate the well-recognized constitutional rights of others,” Berger said in a statement. “Complying with the new marriage law imposed by the courts should not require our state employees to compromise their core religious beliefs and First Amendment rights in order to protect their livelihoods.”
In North Carolina, county register of deeds offices issue marriage licenses, and registrars, magistrates, and other employees of the offices can perform weddings. It was not clear if the bill Berger intends to propose would apply to issuance of licenses or only to ceremonies; specifics are still being worked out, an aide to Berger told The News & Observer.
Over the weekend, the North Carolina Values Coalition, which had backed the state’s constitutional amendment banning same-sex marriage, sent an email to state registers of deeds saying they would be within their federal and state constitutional rights to refuse to issue licenses to same-sex couples if they object to same-sex marriage on religious or moral grounds, The Charlotte Observer reports. The coalition referred to a memo from the Alliance Defending Freedom, a right-wing legal group, saying registers of deeds could appoint a deputy to process licenses for these couples.
Pro-marriage equality groups were skeptical of the coalition’s assertion. “It doesn’t hold any water,” Chris Brook, legal director for the American Civil Liberties Union of North Carolina, told the Charlotte paper. It’s not a case of forcing a church or private citizen to do something in conflict with religious convictions, Brook explained, but rather “state actors carrying out state job responsibilities.”
Tami Fitzgerald, executive director of the North Carolina Values Coalition, said that when these public officials took office, the state did not offer same-sex marriage, so they did not expect to be involved in such marriages. John Kallam Jr., the Rockingham County magistrate who resigned last week cited just this factor, writing, “I did not ... take that oath with any understanding that I would be required to marry same-sex couples.”
Marriage equality came to North Carolina October 10, when U.S. District Judge Max Cogburn struck down the ban. Then, four days later, another federal judge, William Osteen, ruled for marriage equality in a separate case. Osteen allowed Berger and Tillis, as the state legislature’s leaders, to intervene in the case, which gave them the right to appeal the ruling, albeit on very narrow grounds. Cogburn had turned down their request to intervene, and the state’s attorney general had ceased defending the ban.
Berger and Tillis, both Republicans, say they will indeed appeal the ruling to the U.S. Court of Appeals for the Fourth Circuit — which, however, is likely to uphold marriage equality, as it did in a case from Virginia, a ruling that the U.S. Supreme Court recently declined to review. John Eastman, a lawyer who has worked with the National Organization for Marriage, is handling the case.