State Politics

Former magistrate files suit challenging mandate to perform same-sex marriages

Charlie Smoak, a former Moore County magistrate, has filed a lawsuit in a Wake County court challenging state court officials who contend that magistrates must perform gay marriages as part of their jobs.

The lawsuit contends that Smoak’s state constitutional rights were violated when the head of the state court system informed magistrates in October that two federal court rulings meant performing same-sex marriages were part of their job duties.

The suit also lists Jane Doe, a magistrate who is still working but who wishes to remain anonymous, as a party to the suit.

Smoak resigned from his job on Dec. 31, according to the court file.

The lawsuit came just months after two federal court judges issued rulings that struck down North Carolina’s constitutional amendment defining marriage as a union between a man and a woman.

The U.S. Supreme Court is scheduled to take up the topic this spring in cases that could decide once and for all whether the federal Constitution extends the right for gays and lesbians to marry or whether states can decide whether to recognize such unions.

In October, after the federal court rulings that opened the doors for hundreds of gay couples to legally marry in North Carolina, the head of the state courts sent a letter across the state after Sen. Phil Berger, a Republican from Rockingham County, questioned whether magistrates could opt out of performing same-sex weddings.

John W. Smith, the director of the N.C. Administrative Office of the Courts, is named in the suit. He said last fall that he worried that Republican legislative leaders might have “misled” magistrates several weeks ago into thinking that federal law permitted them to opt out of performing such marriages. Smith outlined his concerns in a three-page letter to Berger, an attorney.

“While many state officials may desire to provide protection and accommodation to our magistrates who would prefer not to comply with the court order because of religious convictions, our magistrates need to be aware of the potential consequences…,” Smith stated in his Nov. 5 letter to Berger.

Smith was responding to a letter submitted by 28 state senators who challenged a guide sent to court officials across the state after gay marriage became legal in North Carolina. The letter, sent by Berger, called on the court system to revise its direction to court officials and advise them “of federal and state protections afforded to employees who, for reasons of religious faith, cannot participate in the recently court-sanctioned same-sex marriage ceremonies.”

Smith’s letter to Berger was distributed and lauded by gay-rights advocates.

But at the start of the session, Berger introduced legislation that would allow magistrates to opt out of such duties.

Berger filed a bill to allow magistrates to refuse to preside at same-sex weddings and assistant and deputy registers of deeds to not issue licenses based on “sincerely held religious objection.” But any such recusal must last at least six months, and the officials couldn’t be involved in traditional marriages either.

Democratic lawmakers and the gay-rights group Equality North Carolina said at a news conference such a recusal measure is discrimination in disguise against gays and lesbians.