Like every other lesbian or gay parent in North Carolina, I was thrilled when a federal appellate court brought marriage equality to the Old North State last July. Same-sex couples can now access the 1,000-plus benefits, rights and protections provided on the basis of marital status in federal statutes. I felt relief that my two young daughters will no longer carry the humiliation of knowing their parents are second-class citizens in the eyes of the law.
This fact, however, does not sit well with GOP leaders in the General Assembly. Senate President Pro Temp Phil Berger has proposed Senate Bill 2, which would permit magistrates, assistant registers of deeds and deputy registers of deeds to refuse to perform marriages and issue marriage licenses “based upon any sincerely held religious objection.” The bill passed the Senate on Feb. 25 almost entirely on party lines and will likely be debated in the House this week. While SB2’s supporters argue that it provides religious accommodation to public officials, fair-minded North Carolinians should recognize what the bill actually represents: a desire not only to burden and stigmatize same-sex couples seeking to exercise their constitutional rights, but also to pander to homophobic voters.
SB 2 contravenes recent federal case law establishing the right to marry. Last October, federal district court judges in two separate North Carolina cases struck down the state’s laws restricting marriage to a man and woman and enjoined the state, the Attorney General and its officers, agents and employees from implementing state constitutional provisions or statutes that prevent same-sex couples from marrying. The cases held that denying same-sex couples the right to marry violated their constitutional rights to due process and equal protection. The premise underlying the federal court’s decisions is basic: Judicial officials personally opposed to same-sex marriage may not simply refuse to follow the law.
SB 2 is unworkable and opens the door wide to discrimination.
If the bill became law, courts would have to ensure that when magistrates and assistant and deputy registers of deeds opt out, other judicial officials such as chief district court judges would be on hand to issue marriage licenses and perform marriages. But in counties throughout the state, large numbers of judicial officials could simply elect to skirt their duties. Couples seeking to exercise their legal rights could be endlessly turned away and told to return when a judicial official actually following the law is available. Further, SB 2 would permit recusal by judicial officials who have “sincere religious objections” to interracial couples, interfaith couples or couples in which one member was previously married. Civil marriage will become a privilege, not a right.
Because of its obvious illegality, SB 2 will undoubtedly lead to costly litigation that taxpayers cannot afford. When state Attorney General Roy Cooper decided in July that his office would no longer defend the state’s constitutional amendment outlawing same-sex marriage, GOP leaders hired private counsel to do so. To date, legal fees for the state to pursue this losing battle have amounted to $100,000. This hefty sum will increase when SB 2 opponents file an inevitable legal challenge.
Passage of this bill would place North Carolina on the wrong side of history. Public opinion on same-sex marriage has changed dramatically in the past few years. More than half the public now favors allowing gays and lesbians to legally marry, including 70 percent of those between the ages of 18 and 32. Same-sex couples can now marry in 37 states. Last month, the U.S. Supreme Court refused to stay a federal court order permitting same-sex marriages in Alabama. Legal experts agree that at least five of the justices appear to have concluded that there is a constitutional right to marry for same-sex couples.
When the Supreme Court rules in June, same-sex marriage will be the law of the land. As my 7-year-old told me, “As long as two people love each other, it shouldn’t matter whether they are two men or two women.” Against a backdrop of growing public support and a changed legal landscape, she can openly express that opinion without fear of teasing by her peers.
Berger and his supporters cannot hide their bigotry by dressing it up as religious freedom. In 1789, James Madison wrote, “The civil rights of none shall be abridged on account of religious belief.” We should reject this new attempt to legitimize anti-gay prejudice. It’s time to get on the right side of history.
Barbara Fedders is a clinical associate professor of law at the UNC School of Law.