Same-sex marriage has come to North Carolina. Now that gay couples can marry, many will prefer to solemnize their vows before a civil magistrate rather than a member of the clergy.
Magistrates are the only judges in North Carolina who have the power to perform weddings. Having the power to marry is not the same as having a duty to marry. Nevertheless, the North Carolina Administrative Office of the Courts recently sent a memo to judges and clerks statewide saying that all magistrates must perform same-sex marriages or face the threat of criminal prosecution for failure to do their duty.
Most magistrates welcome the opportunity to officiate at same-sex weddings. Since courts have declared that gay persons have a fundamental right to marry a same-sex partner, gay couples should have ready access to magistrates who will perform their marriages.
The AOC memo has put some magistrates in a very difficult position. They cannot perform gay marriages without violating their religious consciences. Like millions of American citizens, they continue to hold views on marriage that have dominated religious faith for two millennia. At least six magistrates have quit or announced their resignations rather than perform gay marriages.
Our nation has a long history of protecting the free exercise of religion. It’s so important that it was written into the First Amendment to the Constitution and most state constitutions. In the rush to embrace the new right of gay marriage, we must not cast aside other cherished freedoms such as the right to believe and exercise one’s religion free from government coercion.
Since no one has a right to be married by a particular magistrate, the solution to this problem is simple: Arrange for gay marriages to be performed by those magistrates who don’t object.
Everybody wins under this arrangement – the gay couple is married and the magistrate who cannot perform gay marriages for religious reasons is accommodated.
Of course, some inconveniencies will arise. Where there aren’t enough magistrates to ensure availability to gay couples in a particular county, the AOC should pay travel expenses to bring in magistrates from nearby counties to perform the weddings. Such situations likely will be rare and any expenses modest.
The AOC’s failure to attempt such an arrangement is puzzling. Let’s hope its aim was not to punish those who oppose gay marriage on religious grounds. Penalizing someone for the “incorrectness” of his or her religious beliefs is not something the government can or should do.
Someone might say, “But magistrates do not have the right to impose their religious beliefs on everyone else.” This is not like the case, say, of a judge who decides to sentence a criminal to jail using biblical or Sharia law rather than the state’s criminal law. The judge could not invoke religious freedom to justify his choice of law.
But magistrates are not imposing their beliefs on others; in fact, it’s just the opposite. The AOC is imposing on them a requirement to do something that violates their religious conscience. They are being forced – under the threat of criminal prosecution or job loss – to marry a gay couple against their sincerely held religious beliefs.
Someone else might say, “But we wouldn’t excuse magistrates from performing interracial marriages for religious reasons.” I agree. Our nation has an ugly history of racial bigotry that sometimes was justified by religion. But we’ve had a civil war and three constitutional amendments dealing with racial equality, so it’s hard to draw a close comparison between interracial and gay marriages.
The AOC should reconsider its position and provide wide access to magistrates willing to perform same-sex marriages while excusing those magistrates whose religious convictions prevent them from facilitating such unions. That would affirm the best of our constitutional traditions and protect the rights of everyone involved.
E. Gregory Wallace is a law professor at Campbell University School of Law. The views expressed are his own.