In the legislature this year, the first bill filing of consequence was the second one submitted in the Senate, a proposal addressing religious freedom and same-sex marriages – and one that became law at 10:10 a.m. on Thursday over Gov. Pat McCrory’s veto.
Senate Bill 2 had one lawmaker as its primary sponsor: Phil Berger, the leader of the Senate.
Berger’s bill didn’t just appear. The bill traces to what happened last fall after federal courts allowed same-sex marriages in North Carolina and then some magistrates refused to carry them out.
On Oct. 14, the state’s Administrative Office of the Courts told magistrates in a memorandum that their oath and the law required them to perform all marriage ceremonies, even for same-sex couples. Refusal “is grounds for suspension or removal from office, as well as potential criminal charges,” the memo said.
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Berger and his fellow senators responded to the AOC director, John Smith, saying the guidance was “at best incomplete and at worst misleading.”
Berger expressed concern that magistrates who perform marriages – and registers of deeds employees who issue marriage licenses – were being forced to ignore their religious beliefs to keep their job.
“Assertions amounting to threats about job loss and criminal prosecution without acknowledgment of recognized and existing workplace protections appear to have misled some supervisors to believe that the law will not tolerate the actions of reasonable men and women,” Berger wrote.
He added: “Communities have been divided.”
Berger wrote a second letter in early November, saying Smith was not making “any sort of reasonable effort to constructively guide courthouse officials at a time when such leadership is needed most.”
Smith, a former judge and prosecutor, wrote to Berger three days later, saying the law was clear and that magistrates who had chosen to resign “demonstrated their thoughtful choices in resolving their moral dilemmas.”
The AOC’s position was unchanged.
Smith included in his response to Berger a letter from a magistrate who was also an ordained minister. The letter outlined distinctions between the role of government and churches in marriage. “Civil marriage is an act of State,” the magistrate/minister wrote. “Holy matrimony still belongs to the Church.”
Berger in late January filed Senate Bill 2, which gives the county-level court officials the ability to opt out of handling any marriage duties based on any sincere religious objection. It also requires that offices be open for all marriage duties at least 10 hours a week over three days. Critics say it doesn’t provide equal access for all.
The Senate, controlled by Republicans, passed the bill overwhelmingly in late February.
In early March, to no one’s surprise, Smith announced his retirement.
But it was Tim Moore, the first-term speaker of the House, who delivered the votes that made Berger’s bill into a law.
As Senate Bill 2 sat in a committee in the House, a firestorm of controversy erupted in Indiana and then Arkansas over passage of broader “religious freedom restoration act” bills. Widespread objections from the business community gave pause here to Republicans.
Berger stepped in, drawing a distinction between the “RFRA” bills elsewhere and his marriage bill here. The RFRA bills applied broadly and needed study, he said, while Senate Bill 2 was a specific fix to a specific problem.
Moore, navigating the politics of a diverse GOP caucus, declared that a broader religious freedom bill filed in North Carolina (and similar to Indiana’s) was dead. In his caucus, many were not pleased. The fate of the marriage bill was unclear.
In late May, Moore brought Senate Bill 2 to passage in two separate, major votes. It passed on the first in a 65-45 vote. It passed the second vote, on May 28, by a margin of 67-43.
McCrory vetoed Senate Bill 2 within hours.
The governor said: “Whether it is the president, governor, mayor, a law enforcement officer, or magistrate, no public official who voluntarily swears to support and defend the constitution and to discharge all duties of their office should be exempt from upholding that oath.”
A veto override
In North Carolina, lawmakers can overrule a governor’s veto – an “override” requires approval of three-fifths (or 60 percent) of the lawmakers present and voting.
In the Senate, that was easy and quick. But those two previous votes in the House – it had passed with 59 percent and then 61 percent – led to uncertainty.
Moore proved in the following week to be a master vote counter.
The House met five times with an override on the calendar – but did not take it up. On June 4, five lawmakers were absent, but Moore didn’t call for a vote. On June 9, a different five were away. Again, no vote. And so on.
On Thursday, in a span of less than 10 minutes, Moore brought up the override; watched as Republicans cut off debate with a procedural move; and then locked the vote in.
It passed 69-41, and Senate Bill 2 was immediately the law. Of the 120 members in the House, 110 had voted, giving Moore a three-vote margin for the successful override.
Dome’s analysis of the three major votes on the bill in the House shows what Moore clearly knew: On any given day, at any given time, the outcome of the override depended on who was present and voting.
Projecting a possible vote based on previous votes is complicated by the negotiating that surrounds an override. Two Republicans (Leo Daughtry of Smithfield and Rick Catlin of Wilmington) supported the original bill in the House but then cast votes against the override, for example.
Still, it appears that had the full House voted, the override vote would have had 72 ayes – exactly the three-fifths needed.
Moments after the vote, Moore acknowledged there had been a “mixed bag” of possible outcomes but said he had worked the timing to ensure passage, proceeding only “when we felt like we had the votes.” On Thursday morning, he did.
Moore said the override “reaffirms the support ... to protect the conscience of magistrates in performing these duties while at the same time ensuring that marriage services are available.”
J. Andrew Curliss
Reaction on veto override
Reaction varied on the override late last week of Senate Bill 2, which passed into law a measure that allows magistrates to refuse marriage duties.
Gov. Pat McCrory (R)
“It’s a disappointing day for the rule of law and the process of passing legislation in North Carolina. I will continue to stand up for conservative principles that respect and obey the oath of office for public officials across our state and nation.”
Rep. Paul “Skip” Stam (R-Apex)
“I’m confident that it’s the majority opinion of the people of the state. Sometimes when they are fed a lot of misinformation by various sources, they will give you a different answer. We’ve done polling on it... Any employee of a large business is entitled to an accommodation of religious liberty issues. That’s been the law since 1964. It’s normal. It’s the way employment law has worked for 50 years.”
Rep. Rick Glazier (D-Fayetteville)
“Not only today did we violate the U.S. Constitution, we violated the state constitution.”
Democratic leader Rep. Larry Hall (D-Durham)
“Sad day in North Carolina. We have Democrats here that care about all North Carolinians and about the rights of all North Carolinians and about the constitution. ... We have just taken away the rights of North Carolinians and sanctioned state employees and their right to decide to make other people second-class citizens.”
Senate leader Phil Berger (R-Eden)
“Thank you to House members for voting their conscience, making SB2 law.” (On Twitter)
Majority leader Rep. Mike Hager (R-Rutherford Co.)
“This override stands for religious freedom in the State of North Carolina. It does not discriminate against anyone for any reason. It simply gives protection to our Magistrates and Registers of Deeds so that they are not forced to perform an act that they have a sincere religious objection to.”
Rep. Susan Fisher (D-Asheville)
“This will go to court, just like so many of the bills we have seen from the other side and again, and taxpayer money will be used to defend North Carolinians in this state from the bad legislation coming from the other side.”