Goin’ to the Courthouse and We’re Gonna Get Married

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The impediments to same-sex marriage in North Carolina have fallen like dominos over the past ten days. On Monday, October 6, the United States Supreme Court denied certiorari review in Rainey v. Bostic, No. 14-153, 2014 WL 3924685 (U.S. October 6, 2014), thus declining to reconsider the Fourth Circuit Court of Appeals’ conclusion in Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014), that Virginia’s same-sex marriage bans, which are substantively identical to the constitutional and statutory bans in North Carolina, violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment.  The Fourth Circuit issued its mandate in Bostic later that day. Four days later, United States District Judge for the Western District of North Carolina Max. O. Cogburn, Jr. ruled that North Carolina’s laws prohibiting same-sex marriage were unconstitutional and enjoined the registers of deeds named as defendants in the action pending before him from enforcing the state’s marriage laws to the extent that they prohibit a person from marrying another person of the same gender, prohibit recognition of same-sex marriages lawfully solemnized in other U.S. jurisdictions, or seek to punish clergy or other officiants who solemnize the union of same-sex couples. Minutes after Judge Cogburn issued his ruling—after 5 p.m. on a Friday—registers of deeds issued marriage licenses to eager same-sex couples, and the courthouse weddings began.


Getting Hitched Before a Magistrate. Many of those weddings were presided over by North Carolina magistrates.  In addition to their powers as judicial officials in civil and criminal actions, magistrates are authorized by G.S. 7A-292(9) to perform marriage ceremonies. And while many such ceremonies have been performed without incident, one Pasquotank County magistrate refused to marry two men, reportedly citing his religious views that marriage should be between a man and a woman.  (The two men subsequently were married by a different magistrate). And there are reports that other magistrates might seek to do the same. Magistrates May Not Refuse to Marry Same Sex Couples. The general counsel for the North Carolina Administrative Office of the Courts (AOC), the administrative agency that provides support services for the courts, issued a memorandum on Tuesday advising that magistrates who conduct other marriages may not refuse to marry same-sex couples for whom a marriage license has been issued by the register of deeds. The AOC advised that such a refusal violates the U.S. Constitution, the magistrate’s oath to support and maintain the Constitution and laws of the United States, and amounts to the failure to perform a duty of the office. The AOC further cautioned that a magistrate’s refusal to perform a same-sex marriage constituted grounds for suspension or removal from office under G.S. 7A-173 and might also be a criminal act under G.S. 14-230, which prohibits public officials, including magistrates, from willfully refusing to discharge the duties of their office. No such consequences have befallen the Pasquotank County magistrate who refused to marry a gay couple. The chief district court judge for the district said he would investigate the matter if a complaint were filed, and the couple the magistrate refused to wed have said they do not plan to file a complaint.

Does the Reason for the Magistrate’s Refusal Matter? The AOC answered this question with a flat no. A magistrate might argue, however, that the requirement to perform a marriage ceremony that is against her religious views violates her First Amendment right to free exercise of religion. Town clerks in Vermont raised such a claim after that state adopted a law allowing civil unions between same-sex couples. The Supreme Court of Vermont in Brady v. Dean, 790 A.2d 428 (2001), expressed skepticism over the proposition “that a public official . . . can retain public office while refusing to perform a generally applicable duty of that office on religious grounds.” Id. at 434.  The court ultimately determined that the civil union law itself freed clerks of any free exercise burden by permitting assistant town clerks to issue the licenses for civil unions. In determining whether a state could lawfully criminalize all peyote use, including religious use, and deny unemployment benefits to persons dismissed from their jobs because of such religiously inspired use, the United States Supreme Court in Oregon v. Smith, 494 U.S. 872 (1990),  explained that “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’” Id. at 879. Thus, the court determined that Oregon could constitutionally prohibit the ingestion of peyote for any purpose and could deny unemployment benefits to employees who were dismissed from their jobs for use of the drug.  The Smith court relied in part upon Reynolds v. United States, 98 U.S. 145 (1878), which rejected the claim that criminal laws against polygamy could not be constitutionally applied to those whose religion commanded the practice. While I’ll be the first to admit that the First Amendment falls outside my scholarly expertise, the marriage laws to appear to be the sort of generally applicable law the Smith Court had in mind. See also Allison L. Collins, “I Will Not Pronounce You Husband and Husband”: Justice and the Justice of the Peace, 61 Ala. L. Rev. 847, 847 (2010) (examining potential free exercise claims by justices of the peace who object on religious grounds to performing same-sex marriages). Indeed, if magistrates are free to refuse to perform same-sex marriage ceremonies based on religious objections, it appears that it would be equally legitimate for a Catholic magistrate refuse to preside over the marriage of a person who previously had been divorced.

What’s Next? Some predict that the legislature will consider amendments to state laws that allow religious bodies, other private parties, and perhaps public officials, to refuse to participate in same sex marriages. Cf. 750 Ill. Comp. Stat. 75/15 (providing that nothing in the state’s civil union act “shall interfere with or regulate the religious practice of any religious body.”). Any such proposal likely will generate a firestorm of debate over whether it amounts to government establishment of religion. See Collins, at 857.  Stay tuned to see what happens when the North Carolina General Assembly re-convenes in January.

Take-Away. People’s views of same-sex marriage differ. Just two years ago, a large majority of North Carolinians who voted on the issue approved a constitutional amendment banning same-sex marriage. Doubtless, that vote for many people was informed by religious conviction. Regardless, North Carolinians of all viewpoints can take pride of the way the rule of law has been executed in this state. A day after Judge Cogburn’s ruling, Governor Pat McCrory, who previously opposed same sex marriage, announced that his administration would be ready to execute the law, stating that it was his job to enforce the state and federal constitution.The AOC issued a clear directive to judicial employees. And state court judges have taken an active role in ensuring that the magistrates they supervise follow the law.

4 comments on “Goin’ to the Courthouse and We’re Gonna Get Married

  1. Two years ago a majority of North Carolinians voting in an off-election voted to amend our constitution. Our legislature deliberately declined to put this amendment on the ballot at a general election for obvious reasons – while many voters did not have a dog in the fight to the extent they would make a special effort to vote, they certainly would have expressed their views had they been voting as a part of a general election where more people vote. The passage of the amendment points out why constitutional amendments should only be on the ballot as part of a general election.

  2. As an employee of the AOC, I’m frustrated that such a memo has been so publicly published for magistrates and magistrates alone.

    To the AOC, how about publically addressing our district court judges, court of appeals judges, and justices of our state supreme court? How about addressing our elected clerks and their deputies? All are paid representatives of the state. All have different opinions on this issue. All would be neglecting their duties should they refuse their responsibilities to same sex couples under the U.S. Constitution.

    Let’s see a memo that includes all state employees, equally, under one umbrella on the issue of same sex marriage – one that doesn’t depend upon the logical fallacy that since one group performs more marriages than the other then that group alone should be singled out for overbearing public direction.

  3. […] sex marriage has been permitted in North Carolina for a couple of weeks. Shea blogged here about one potential criminal law implication: the possibility, discussed in a memorandum from the […]

  4. […] blogged here about the same-sex marriage rulings in North Carolina’s federal courts, and the potential […]

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