A federal judge dismissed a lawsuit by three couples who challenged North Carolina’s law that allows magistrates to refuse to marry same-sex couples by citing religious beliefs and opting out of performing all marriages.
At least for now, North Carolina will remain one of two states enabling government officials to recuse themselves from marrying couples for religious reasons. The Republican-controlled legislature passed the 2015 law over a veto by GOP Gov. Pat McCrory.
U.S. District Judge Max Cogburn ruled that the couples lacked legal standing as taxpayers to sue and lacked evidence showing they were harmed directly by the law that took effect in June 2015.
In his 38-page ruling, Cogburn stated that the couples lacked standing “by virtue of the fact that their claims are merely generalized grievances with a state law with which they disagree.” They had not, Cogburn stated, “alleged, let alone submitted affidavits or other evidence, showing any injury in the form of direct harm that might allow the court to find standing on grounds other than taxpayer status."
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The judge, though, did not rule out the potential for other challenges of the law by people who could show harm.
“A law that allows a state official to opt out of performing some of the duties of the office for sincerely held religious beliefs, while keeping it a secret that the official opted out, is fraught with potential for harm that could be of constitutional magnitude,” the judge wrote.
The three couples — Kay Diane Ansley and Catherine McGaughey of McDowell County, Carol Ann and Thomas Roger Person of Moore County and Kelley Penn and Sonja Goodman of Swain County – plan to appeal the ruling entered Tuesday in Asheville.
Ansley and McGaughey were married on Oct. 14, 2014, four days after two federal judges ruled in North Carolina that the state’s Amendment One, which defined marriage as a union between a man and a woman, was unconstitutional. That preceded the U.S. Supreme Court ruling in June 2015 that made gay marriage legal across the country.
The Persons are an interracial couple who tried to get married in 1976, but two magistrates in Forsyth County refused to preside over their wedding because of religious objections to interracial marriage. Two years later, a federal district court found that the two magistrates had violated the equal protection rights of the couple and ordered that their marriage be performed and for the magistrates to pay their legal fees.
Penn and Goodman are engaged to be married.
Roughly 5 percent of North Carolina’s magistrates are refusing to marry same-sex couples for religious reasons, including every magistrate in McDowell County. In such cases, a magistrate is brought in from another county for gay marriages.
In a hearing on the case in August, Cogburn said he was bothered that when magistrates who claim a religious exception fill out a form saying so, court administrators appear to require that it be kept secret.
Gay couples who come before a local judge for an eviction or small claim have a right to know if that judge won’t marry gays, he said.
“When litigants come to you, they have to know they are getting a fair shot,” Cogburn said.
The challengers argued that no taxpayer money should go to a judge who refuses to uphold the law.
N.C. Senate leader Phil Berger, a Republican from Eden and a lawyer who authored the law, applauded Cogburn’s ruling.
“We appreciate the court recognizing the plaintiffs failed to identify even one North Carolinian who was denied the ability to get married under this reasonable law which protects fundamental First Amendment rights,” Berger said in a statement.
The federal judge’s decision came the same day that the N.C. Court of Appeals issued a ruling against two former NC magistrates who resigned after gay marriage became legal.
Gilbert Breedlove from Swain County and Thomas Holland of Graham County resigned after court officials informed magistrates in a 2014 memorandum that they could lose their jobs if they refused to perform gay marriages.
The two former magistrates, who described themselves as devout Christians, filed a lawsuit in April 2015 seeking to be reappointed as magistrates and to receive back pay and benefits for the time spent resigned from their posts.
The appeals court upheld a lower court ruling to dismiss their case. Both courts found that the plaintiffs lacked standing for their lawsuit because local judges have power to appoint, suspend or fire them – not the state officials who sent the memo.