Senate Republicans said in a letter Friday to the Administrative Office of the Courts that magistrates should be able to opt out of performing same-sex marriages, contradicting a memo from the AOC.
Twenty-eight of 33 Senate Republicans signed the letter, including Senate leader Phil Berger of Eden. Berger said earlier this week he would file a bill next session shielding magistrates and registers of deeds with religious objections from involvement in gay marriages.
A magistrate in Elizabeth City turned away two men seeking to get married after a federal judge struck down the state’s same-sex marriage ban. At least two magistrates have resigned, saying they don’t want to perform same-sex marriages.
The AOC memo said that magistrates have an obligation to uphold the Constitution and could be disciplined for failing to do so.
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The Senate Republicans’ letter said the memo ignored state and federal protections afforded employees who cannot participate in same-sex weddings for reasons of religious faith.
Constitutional scholars disagree on this point. Some say government employees do have these protections, but other law professors say government workers are bound by the Constitution’s equal protection clause.
The letter goes on to say that state law gives chief district judges, registers of deeds and clerks of court flexibility in making job assignments, and can make accommodations for employees who object to same-sex marriage.
“Every part of the United States Constitution must be read together if our freedoms and institutions are to be meaningfully recognized and liberty is to prevail,” the letter says. “We encourage you to revise the memorandum to include a comprehensive and correct statement of federal and state law on the doctrine of reasonable accommodation and management flexibility.”
The AOC director, Judge John W. Smith, told Berger he would consider the issue more.
“I do note that the reasonable accommodation issue to which you refer is quite complex,” Smith wrote in his response to Berger. “That was the direction I originally contemplated and discussed with counsel. As you know, many of our counties have only three or four magistrates with only one magistrate available most of the time, and endorsing an exemption presented the problem that in some of those counties we could have a situation where no marriages could be performed without violating the court orders.”
The Civil Rights Act of 1964, which Berger referenced in his letter, “could not be used because it does not cover our magistrates and cannot be used in this situation, but I will certainly take a second look,” Smith wrote.
“You will note that our memo stops short of saying that every magistrate in a county must conduct weddings. Only that if any magistrate conducts any weddings, the magistrate must comply with the federal rulings and treat all of our citizens equally until those decisions are reversed, stayed, or vacated. I certainly stand to be corrected on the interpretation and application of the law, and will look into the issue further with our staff as quickly as possible.”