NEWS

How far must NC go to deal with gay marriage concerns?

Mark Barrett
mbarrett@citizen-times.com

During the state Senate’s emotional two-hour debate last week over a bill that would allow magistrates and some register of deeds office employees to opt out of facilitating marriages on religious grounds, Sen. Bill Cook made one of proponents’ main arguments in just a few words.

“If I were a magistrate and we didn’t pass this bill and I lost my job because I hold certain religious principles dear, I’d sue and I think I’d win,” said Cook, a Beaufort County Republican.

Not necessarily, say two experts, one of whom is an advocate of Senate Bill 2, which passed the Senate on Wednesday. But, the bill backer says, just because the state does not have to allow employees to recuse themselves doesn’t mean it cannot legally give them that option.

Employers must make accommodations for their employees’ religious beliefs and practices only if that involves minimal disruption to their business and minor expense, two law school professors said. Both said that in most counties, the state could easily show the burden of allowing employees to opt out is more than the law says it must bear.

“The Constitution protects the free exercise of religion, (but) whether the magistrate would have a claim under the free exercise clause is doubtful,” said Gregory Wallace, who teaches at Campbell University’s Wiggins School of Law in Raleigh and specializes in constitutional law, free speech and church and state issues. He supports Senate Bill 2.

“In virtually every case, current law would not require this kind of accommodation. The bill is seeking a pretty broad exemption,” said Jeffrey Hirsch, associate dean for academic affairs and a professor at UNC School of Law. He specializes in employment law and didn’t take a position on the bill, although he said he has doubts whether it would withstand a legal challenge.

Rights vs. access

The debate over Senate Bill 2 involves what the balance should be between two principles in the Constitution that have been litigated in the courts and debated in legislative bodies for nearly 150 years.

On the one hand is some workers’ interest in not performing acts they disagree with on religious grounds, which touches on the free exercise of religion.

On the other is the state and the public’s interest in ensuring everyone has the same access to services the state provides — in other words, giving equal protection under the law.

The bill would allow deputy and assistant registers of deeds, who issue marriage licenses, and magistrates, who perform marriages, to opt out of those duties based on “any sincerely held religious objection” without penalty.

The recusal would last at least six months and apply to opposite-sex and same-sex marriages. Other officials would be required to perform marriages, although the period of availability in an area could shrink to as little as 10 hours a week.

Hirsch and Wallace said that is probably more than the state is required to do under laws and court rulings on religious freedom for workers.

An employer “only has a duty to accommodate religious preference if that accommodation doesn’t involve more than a (minimal) cost to the employer,” Hirsch said.

It’s often possible to handle employees’ preferences without much problem, and that’s commonly done, Wallace says.

Employers routinely honor Seventh-Day Adventists’ requests not to schedule them for work on Saturdays, their sabbath, he said.

Postal workers successfully sued years ago to be allowed to opt out of registering people for Selective Service because they had religious objections to war, he said.

But, there are limits to how far an employer has to go.

A drugstore that has several pharmacists on duty typically can’t require one who objects to birth control to handle prescriptions for it so long as other pharmacists are available to do the job, Hirsch said. But in a drugstore where only one pharmacist is on duty at a time, an employer would be within its rights to dismiss the pharmacist if he or she refused because the refusal would result in more than a minimal disruption to the business, he said.

Wallace said the amount of disruption a magistrate’s recusal would create under Senate Bill 2 would vary from county to county. Large counties might have enough staff to handle marriages even if one or two magistrates opt out, he said. But many rural counties have only three or four magistrates, meaning the state could require each to perform marriages if it wanted to in order to ensure the service is reasonably available.

Still, he calls Senate Bill 2 a “win-win situation” because he says workers’ religious concerns would be respected but everyone who wants could be married.

“I’m a strong believer in religious freedom, and I don’t think that the state should penalize people for their religious beliefs,” he said.

Opponents said the state should stay as far away as possible from anything that suggests employees can pick and choose which laws they will implement and which they don’t.

“It seems to me that if you are a magistrate, you took an oath to uphold the duties of the office,” Sen. Erica Smith-Ingram, D-Northampton, said during last week’s Senate debate. “If you feel you cannot do that, I would urge you to resign and take another job.”

Motives and equality

Even some opponents say Senate Bill 2 was carefully crafted to withstand a challenge alleging it violates the principle of equal protection under the law.

But, the two sides disagree on whether bill authors actually reached that goal.

“Anyone in North Carolina who is entitled to be married pursuant to North Carolina law, to North Carolina court decisions, to federal court decisions will be able to get married in North Carolina,” Senate President Pro Tem Phil Berger, a Rockingham County Republican who is one of the bill’s primary sponsors, said during Senate debate. “All of the discussion about discrimination and not allowing people to get married, that’s not this bill.”

Wallace agrees. If the bill passes, “No gay person who is going to seek either a marriage license or a wedding is going to be denied that,” he said.

Opponents say the motives behind the bill would undercut that argument in the event of a likely lawsuit and discrimination against same-sex couples could still occur.

A magistrate “could be standing at the counter marrying heterosexual couples and the moment a gay couple steps up, that’s when they recuse themselves,” said Ryan Butler, an attorney who has done work for pro-gay marriage group Equality North Carolina. “When you give people cover to discriminate ... you can’t count on government officials to fairly administer that.”

He and Meghan Burke, an Asheville attorney who volunteers for Campaign for Southern Equality, said the circumstances of the bill’s consideration could lead a judge to strike it down as illegally targeting gays and lesbians.

The Senate debate included declarations by supporters that same-sex marriage is wrong. The measure provides that any magistrate who resigned or stepped down after Oct. 6 could avoid losing certain pension benefits if they are rehired within 90 days of the law’s passage.

Oct. 6 was the day the U.S. Supreme Court declined to hear an appeal from a lower court ruling upholding same-sex marriage, a step that meant same-sex marriage was legal in North Carolina.

It’s clear who is being targeted, Burke said, and hostility to a group has been held to be an impermissible basis for passing a law.

Using a legal term for ill will, she said, “Bare animus against a group of people is not a legitimate motive for making policy.”

Wallace and Tami Fitzgerald, an attorney who is executive director of bill backer North Carolina Values Coalition, disagreed.

“All that people should care about is that they’re able to get married at the end of the day,” Fitzgerald said. “The animus argument is just blatantly and absolutely false.”

Wallace asked, “How would there be animus against gay persons if gay persons are being treated under the law the same as anybody else?”

What about interracial marriages?

Some of the sharpest disagreements over a proposal to allow some government workers to opt out of marriages on religious grounds involve the question of whether employees could use hostility to interracial or interfaith marriages as a basis to recuse themselves.

It is clear that they could, says Gregory Wallace, a law professor at Campbell University School of Law who nonetheless supports the law, saying the chances of it actually happening are remote.

Under existing law, an employer cannot refuse to make changes to accommodate an employee’s religious beliefs because he or she disagrees with them, Wallace said.

“It’s not up to the government to say, ‘Well, we’re not going to grant you an accommodation here because we think your religious beliefs are false,’ ” he said.

That, combined with language in Senate Bill 2 saying workers may recuse themselves “based upon any sincerely held religious objection,” has led opponents to raise concerns about interracial and interfaith marriages.

Ryan Butler, an attorney who has done work for pro-gay rights group Equality North Carolina, said two magistrates refused to perform an interracial marriage in the state as recently as 1977.

No one knows what might motivate a magistrate to stop performing marriages, he said.

“You’re really giving folks a license to discriminate with this bill and you don’t know what they’re going to use that license for,” Butler said.

Tami Fitzgerald, executive director of bill supporter North Carolina Values Coalition, said in an interview the interracial marriage issue is irrelevant because it won’t come up if the law is passed.

“There isn’t a religion on Earth that says that interracial marriage is against their religious belief,” she said.

How Senate Bill 2 would work

Here is a summary of the proposed bill that would allow some government employees to avoid being part of the process of marriage in North Carolina.

•Magistrates could recuse themselves “from performing all lawful marriages ... based upon any sincerely held religious objection.” Any assistant or deputy register of deeds could opt out from issuing marriage licenses on the same grounds. The law does not say any more about the nature of the religious objection and provides that the recusal would apply to all marriages, not just those involving same-sex couples.

•Magistrates would give their opt-out notice to the chief district court judge and deeds workers would give theirs to the register of deeds. The recusal would last for at least six months and prevent the worker from performing those duties until the recusal is rescinded in writing.

•The register of deeds would be charged with ensuring all qualifying applicants for marriages licenses get one.

•If all magistrates in an area recuse themselves, the chief district court judge must notify the state, which is supposed to ensure that a magistrate is available. Until that happens, the chief district court judge or a district court judge he designates will perform marriages.

•The chief district court judge must ensure that a magistrate is available to perform marriages for a total of at least 10 hours a week spread over at least three business days a week.

•Magistrates and assistant or deputy registers of deeds could not be disciplined for their decision not to facilitate marriages.