The backlash against the gay marriage court ruling picked up force this week with a leading legislator proposing to exempt government officials from attending to same-sex couples and protests in Raleigh on Thursday that religious liberty is under siege.
Senate leader Phil Berger said this week that he would propose a way for magistrates and registers of deeds to refuse on religious grounds to serve gay couples wishing to marry.
Berger’s office said Thursday that he was not available for an interview. But Michael Gerhardt, a constitutional law professor at the UNC School of Law, said a law exempting government workers would be “legally problematic.”
State workers must comply with the federal constitution and are “obligated not to discriminate against people based on sexual orientation,” Gerhardt said.
Berger announced he would propose the new law after a magistrate from his county resigned rather than preside over same-sex marriages.
Rep. Paul Stam, a Republican from Apex, endorsed Berger’s effort at a news conference Thursday. “I concur wholeheartedly in that and have asked our most knowledgeable members to work on appropriate legislation in cooperation with the Senate,” he said.
The fallout over gay marriage is coming just as people are beginning to vote. African-American pastors who appeared with Stam used same-sex marriage and what they said are attacks on religious liberty around the country to urge black voters to “vote their values.” Some in the group worked hard two years ago to pass a state constitutional amendment banning gay marriage. A federal judge struck down the state ban Oct. 10.
The leader of a Fayetteville church used a disparaging term to refer to a gay state Court of Appeals candidate, John Arrowood, saying he shouldn’t be running. “I say he should step down because he’s already biased” against the marriage amendment, said Johnny Hunter of Cliffdale Community Church.
Arrowood, a Charlotte lawyer, was once on the board of the Equality NC political action committee. He served on the appeals court in 2007-8.
“I think it’s unfortunate that people have chosen to make my sexuality an issue,” Arrowood said in an interview Thursday. “I have a record of showing that I am fair and unbiased and that I have no agenda. I have a record that people can see. I think it’s unfortunate in the 21st century that people seem to think my sexual orientation is an issue.”
Bishop E.W. Jackson Sr., Virginia’s Republican nominee for lieutenant governor in 2013, led the group and noted that Thursday was the first day of early voting.
Jackson publicized a petition calling for federal legislation that would prohibit firing workers or fining businesses for “peaceably expressing faith in Jesus Christ, the Biblical definition of marriage, the sacredness of life or any other article of faith.”
Berger idea not a trend
Controversies over magistrates refusing to marry couples is not new. In 1977, two Forsyth County magistrates cited religious and personal objections in refusing to marry an interracial couple. The couple sued in federal court.
Jackson rejected any comparison between religious opposition to interracial marriage and opposition to same-sex marriages.
“We hear this all the time,” he said. “This is the most specious comparison that I’ve ever heard in my life.”
The Bible does not condemn interracial marriage, he said, but it does homosexual relationships.
Other states where gay marriage is new have seen businesses deny services to same-sex couples. For example, some for-profit wedding chapels in Nevada are refusing to host same-sex ceremonies. But officials with the ACLU said they have not heard of attempts in any other states to shield government officials from providing public services.
“This is an isolated incident, not something we’re seeing as a trend,” said James Esseks, director of the ACLU Lesbian Gay Bisexual and Transgender Project.
Christopher Brook, legal director with the ACLU of North Carolina, said the group is monitoring Berger’s proposal. It’s difficult to talk about specifics, he said, because nothing is in writing other than a news release.
A broad religious exemption “could impact a great deal of North Carolinians,” he said, noting the 1977 Forsyth County case. A bill narrowly aimed at gays and lesbians “is susceptible potentially to challenge,” he said.
“Government officials have an obligation to serve all the public, and they cannot turn away people because of who they are and who they love,” Brook said.
Forest sees showdown
State political leaders hope to revive the gay marriage ban. Berger and House Speaker Thom Tillis have intervened in the federal cases.
Lt. Gov. Dan Forest, who issued a fierce response to the federal order overturning the state ban, laid out a path to a “constitutional showdown between the state and federal systems as to which court, outside the Supreme Court of the United States, has the legal authority to rule on North Carolina’s marriage amendment.”
The action, he said, would begin with a magistrate challenging the directive from the Administrative Office of the Courts that magistrates must officiate at same-sex weddings or face disciplinary action, and having that lawsuit reach the state Supreme Court.
“This needs to go through the proper constitutional procedure,” Forest said.
Forest released a fiery response to the Oct. 10 federal order overturning the state’s constitutional ban, asking supporters to stand with him against “judicial tyranny.”
Forest said he doesn’t hold with the theory that states can refuse to enforce federal laws. “I’m not a nullifier,” he said.
But since the Constitution does not define marriage, he said, it’s a power left to the states.