Even if he doesn’t win next month, Mark Chilton’s stand on same-sex marriage has gotten voters interested in the Orange County register of deeds race.
The former Carrboro mayor and former deputy Register of Deeds Sara Stephens are challenging longtime Register of Deeds Deborah Brooks in the May 6 primary. All three are Democrats.
If elected, Chilton said he will issue marriage licenses to same-sex couples, violating his oath to uphold state and federal laws. He could be charged with a misdemeanor and removed from office.
But the real estate attorney and part-time historian said the law is on his side. Both Article 1 and Article 6 of the N.C. Constitution, which includes the oath of office, defer to the U.S. Constitution when there are conflicts, he said.
Sign Up and Save
Get six months of free digital access to The News & Observer
“How can I swear to uphold the Constitution of the United States and uphold Amendment One? ... It implies very clearly how this will be decided in the end,” he said.
Only a court order would make him stop, Chilton said.
“It was a courageous stand he took,” said Chris Sgro, executive director of Equality North Carolina, which is working to overturn North Carolina’s 2012 constitutional amendment defining marriage as between a man and woman. “We’re always appreciative when elected officials are outspoken.”
The Rev. Jasmine Beach-Ferrara, Campaign for Southern Equality executive director, said her group has been in touch with Chilton.
“We agree with Mr. Chilton’s analysis, and we’ve seen clerks in other states make that choice” to buck state law, she said.
The Campaign for Southern Equality wants to find a register of deeds willing to issue same-sex marriage licenses for its “We Do” campaign, she said. So far, the group has had more luck registering same-sex couples’ marriage licenses from other states as public documents, including in Durham County.
Brooks said she hasn’t seen couples trying to do that in Orange County, but it may be because Chapel Hill and Carrboro both offer domestic partnership registries. North Carolina does not recognize same-sex marriage licenses from other states.
Chilton is entitled to his opinion, she said.
“It is my duty as the register of deeds to uphold the law, and the law says that I cannot issue same-sex marriage licenses,” she said.
Stephens said she also would not violate her oath, but she would do everything within her power to support same-sex couples if elected.
The Register of Deeds Office can accept marriage license applications and keep them on file until the state law changes, she said. The office also can make it easier to get married in other states, by signing an affidavit that lets couples bypass required waiting periods.
Her parents were married in 1977, six years after the state lifted an 1875 ban against interracial marriage, she said. Her mother, Orange County Schools board member Brenda Stephens, is black; her father, Greg Stephens, is white.
“Sometimes it takes the rest of the general population (longer) to catch up with you,” she said. “But you do what you think is right.”
So far, the only register of deeds on record as pushing the law’s boundaries is Drew Reisinger in Buncombe County.
Since October, Reisinger has accepted at least 10 marriage license applications from same-sex couples. He held them while seeking approval to issues licenses from state Attorney General Roy Cooper. Cooper’s office replied in January that it would violate state law.
Charles Szypszak, a professor in UNC-Chapel Hill’s School of Government, advises and trains registers of deeds statewide. He agreed Chilton has a point about the state vs. United States constitutions when there is a conflict, but that won’t stop him from being charged or fired, Szypszak said.
Any licenses Chilton might issue wouldn’t be legal, he said.
The Supreme Court struck down a key part of the federal Defense of Marriage Act in June, and the ruling in United States vs. Windsor has figured prominently in decisions striking down same-sex marriage bans in Virginia, Oklahoma and Utah.
It did not stop states from enacting their own marriage bans. Thirty-three states ban same-sex marriage.
“This candidate is making a supposition that assumes what the Supreme Court would do,” Szypszak said. “Windsor is not all that clear.”
The American Civil Liberties Union has several federal lawsuits pending on behalf of six same-sex couples in North Carolina. Sgro said Equality NC is lining up registers of deeds who could issue marriage licenses as soon as the state law is changed.