Under the Dome

NC Senate leader Berger seeks a ‘balance’ on religion

The signing into law of Indiana’s Religious Freedom Restoration Act by Gov. Mike Pence has rippled to North Carolina.
The signing into law of Indiana’s Religious Freedom Restoration Act by Gov. Mike Pence has rippled to North Carolina. Office of Indiana Gov. Mike Pence

Ten days ago, the governor of Indiana put ink to paper and enrolled into law a “religious freedom restoration” act that sparked a national debate about discrimination, religion, freedoms and rights.

Advocates with different viewpoints argued the law’s merits and meanings within the broad, ongoing cultural debate about the treatment of gays and lesbians – and about deeply held religious beliefs. Many expressed concern the law would allow for discrimination. Others say it protects the right of people and businesses to exercise sincere, religious beliefs.

Most clear was that its passage had caused immediate damage to Indiana, with companies, associations and others canceling projects and activities in the state. Lawmakers there proposed a fix by week’s end. Amid the uproar, Arkansas lawmakers had moved quickly and passed their own law. The Arkansas governor said he would sign it – only to backtrack as Wal-Mart and others expressed concern.

North Carolina is not on the sidelines. Similar bills as those passed in Indiana and Arkansas are waiting approval in the House and Senate here. But North Carolina’s leaders who hold power, all Republicans, have taken a more cautious approach.

Gov. Pat McCrory was on the radio in Charlotte first thing Monday, saying he thought the law “makes no sense.” He repeated concerns on Thursday. House Speaker Tim Moore said he cared about the North Carolina “brand” and that his chamber would go slowly.

And what about one of the state’s leading conservatives, Senate leader Phil Berger?

Berger said he did not know if the Senate would act on a bill like the one in Indiana. Decisions won’t happen quickly, he told Dome.

He expressed concern about what seems to be an increase in “intolerance” toward people with sincere religious views.

“That is what appears to be on display at this time,” he said. “I think that’s something that is beginning to concern a lot of people. Are there folks out there, or is there a movement out there that is so intolerant of sincere or traditional religious beliefs that there would be a continuing effort to minimize those beliefs in the public square or in people’s lives?”

He said he and others share a concern about whether “we’re stepping into a new era” where one set of rights “clearly trump” others.

“And there’s no balancing, no nuance. It’s just strictly: we win, you lose,” he said. “I don’t think the vast majority of people are heading in that direction, but if that is the direction we go in, it would be a step in the wrong direction, in my view.”

Berger said that “people take their religious beliefs and the freedom of religion very seriously” and that is “part of what we are.”

“I think over the past almost 300 years, we as a people have prided ourselves on our ability to assimiliate and to accommodate all sorts of different views,” Berger said. “Usually what happens, at least what should happen based on our laws and the precedents that are there, is that when you have a constitutional or an understood right on the one hand that seems to conflict with an understood or constitutional right on the other hand, there’s been an attempt to balance things. The last thing that we have accepted or should be willing to accept – if in fact there are rights on both sides – is that one side in all instances trumps the other.”

In depth discussion needed

The first bill Berger personally filed this year was Senate Bill 2, which addresses both religious beliefs and how same-sex marriages are handled in the state.

The state’s constitution says “marriage between one man and one woman is the only domestic legal union that shall be valid or recognized” in North Carolina. Federal courts ruled last year that same-sex couples have a right to legal marriages in the state.

Berger acknowledged that a broader bill, like the one in Indiana, could have served as a response. But he said a more tailored approach was aimed at a specific issue in the “changed circumstance.”

Berger’s bill would allow a state magistrate or register of deeds with “any sincerely held religious objection” to opt out of same-sex marriage duties – by recusing from performing all marriages or issuing any marriage licenses. The law would require other officials be available to perform those duties. It easily passed the Senate and is now in the House.

“What we attempted to do, and what we did in Senate Bill 2, is strike that balance between making sure that someone who has a sincerely held religious belief is not forced to do something unnecessarily that conflicts with that,” Berger said. “And to balance that against what we were being told by the federal courts was the right to same-sex couples to get married and to make sure those individuals, those citizens, would be entitled and be able to have those ceremonies performed.”

He said that type of balancing of rights is “how we’ve tried, historically, to resolve these things.”

Mostly overlooked in the week’s news was that Berger’s Senate retreated on a different bill also dealing with religious views – it would have stricken the current religious exemption on immunizations for children.

“The response,” he said, “was loud, it was clear and, I guess in some quarters, maybe unexpected.”

He said it illustrated the depth of feeling a broad range of people have about the freedom to exercise their religious beliefs.

“At a minimum,” he said, “we need to have a more in depth discussion about that.”

J. Andrew Curliss

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Religion in North Carolina law

A sample of protections for religious freedoms in current and proposed law.

The N.C. Constitution

Preamble: We, the people of the State of North Carolina, grateful to Almighty God, the Sovereign Ruler of Nations, for the preservation of the American Union and the existence of our civil, political and religious liberties, and acknowledging our dependence upon Him for the continuance of those blessings to us and our posterity, do, for the more certain security thereof and for the better government of this State, ordain and establish this Constitution.

Article I, Sec. 13. Religious liberty. All persons have a natural and inalienable right to worship Almighty God according to the dictates of their own consciences, and no human authority shall, in any case whatever, control or interfere with the rights of conscience.

Other statutes

130A-157. Religious exemption for immunization. If the “bona fide religious beliefs” of a parent or guardian of a child are “contrary to immunization requirements,” the adult or the child shall be exempt from the requirements.

163-166.13. Photo ID for voting. (Effective Jan. 1, 2016) A registered voter with “a sincerely held religious objection to being photographed” and has filed a declaration shall not be required to provide photo identification.

115C-407.30. Student rights to engage in prayer and religious activity. A student shall be permitted to voluntarily do any of the following in a public school to the same extent as a student is permitted to act on nonreligious matters: Pray, alone or with other students; express religious viewpoints; possess or distribute religious literature, subject to time, place, and manner restrictions; organize prayer groups and religious clubs; and express beliefs about religion in homework, artwork, and other written or oral assignments “free from discrimination based on the religious content of the submission.”


House Bill 348/Senate Bill 550. Religious Freedom Restoration Act. State action shall not burden a person’s right to exercise of religion ... unless it is demonstrated that applying the burden to that person’s exercise of religion is essential to further a compelling governmental interest; and is the least restrictive means of furthering that compelling governmental interest. A person whose exercise of religion has been burdened, or is likely to be burdened, may assert such violation or impending violation as a claim or defense in a judicial proceeding.