As president pro tem of the state Senate and the legislature’s political leader, Phil Berger is North Carolina’s top lawmaker.
But in this regard the state has a serious problem. Its top lawmaker doesn’t know what laws are made of. Or at least that’s the pose Berger is assuming on the issue of same-sex marriage in order to curry favor with his conservative base.
The U.S. Court of Appeals for the 4th Circuit has ruled that bans on same-sex marriage violate the U.S. Constitution. That ruling applies to all states within the circuit, including North Carolina, which amended its constitution in 2012 to include such a prohibition. That means that public officials who refuse to marry same-sex couples because of their moral objections are breaking the law.
Berger, a Republican lawyer from Eden, thinks that magistrates who swear to support the Constitution of the United States can make an exception in the case of same-sex couples. He thinks they can refuse to perform such marriages because it offends their consciences.
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Now Berger has taken the director of the Administrative Office of the Courts to task because the director reminded magistrates that they can’t refuse to follow the law. Judge John W. Smith, the AOC director, said magistrates have a duty to perform such marriages. Some magistrates who object on moral grounds have quit, which is the proper thing to do if they can’t in good conscience fulfill their duties.
Berger, however, thinks the objecting magistrates should be accommodated. He wrote to Smith saying his direction “lacks any sort of reasonable effort to constructively guide courthouse officials at a time when such leadership is needed most. ...To actively discourage such conciliation is inexplicable.”
North Carolina and other Southern states banned interracial marriage until 1967 when the Supreme Court ruled such bans unconstitutional in Loving v. Virginia. No doubt some magistrates found interracial marriages objectionable, but there was no official effort to accommodate their views. There shouldn’t be any in the matter of same-sex marriage. Yet Berger not only is asking for conciliation with those who object, he’s also promising to protect them through legislation. In that event, both his opinion and his bill will be a misreading of the law.