June 28, 2017 at 7:01 pm EDT | by Chris Johnson
4th Circuit tosses challenge to N.C. anti-gay marriage law
same-sex marriage, gay news, Washington Blade

The Fourth Circuit has thrown out a challenge to an anti-gay marriage law.

The U.S. Fourth Circuit Court of Appeals tossed out on Wednesday a lawsuit challenging a state law allowing state magistrates to opt out of performing same-sex marriages for religious reasons, citing a lack of standing by plaintiffs in the litigation.

Writing for the three-judge panel, U.S. Circuit Judge James Harvie Wilkinson III determined plaintiffs in the lawsuit — couples who assert the law amounts to spending public funds in the aid of religion — have no standing to press a claim against Senate Bill 2.

“Plaintiffs concede that the state has not impeded or restricted their opportunity to get married,” Wilkinson said. “One same-sex couple married in 2014, another same-sex couple is engaged to be married, and the last pair of plaintiffs, an interracial couple, married in 1976. Nonetheless, they contend that their status as North Carolina taxpayers affords them standing to challenge SB2. Because plaintiffs’ claim does not fall within the narrow exception to the general bar against taxpayer standing, their suit must be dismissed.”

Joining Wilkinson, a Reagan appointee, in the 18-page decision was U.S. Circuit Judge Barbara Keenan, an Obama appointee, and U.S. Circuit Judge Stephanie Thacker, another Obama appointee.

The couples — aided by the Campaign for Southern Equality and the Charlotte-based law firm Tin Fulton Walker & Owen, sued North Carolina in December 2016 on the basis the law violates the Establishment Clause under the First Amendment and rights to due process and equal protection under the 14th Amendment.

But U.S. District Judge Max Coburn in September ruled the couples lacked any claim to standing under both of those arguments in challenging the law, throwing out the case. Although the plaintiff sought an appeal of the dismissal based on the Establishment Clause claims, the 4th Circuit issued a ruling upholding the lower court decision throwing out the case.

Luke Largess, a partner at Tin Fulton Walker & Owen and lead counsel the case, said his team his reviewing the decision and has not made a decision about the next action in the case.

“We are reviewing the court’s opinion published this morning and will make a decision about whether to pursue any further appeals, either to the full 4th Circuit or to the Supreme Court,” Largess said.

The plaintiffs in the case consist of Kay Diane Ansley and Catherine McGaughey, a same-sex couple who married in October as a result of courts overturning North Carolina’s ban on same-sex marriage; Carol Ann Person and Thomas Roger Person, an interracial different-sex couple denied a wedding in 1976, but able to obtain one in 1978 after winning a lawsuit; and Kelley Penn and Sonja Goodman, a same-sex couple in Swain County and who were engage to marry.

Rev. Jasmine Beach-Ferrara, executive director of the Campaign for Southern Equality, maintained SB2 is discrimination regardless of the 4th Circuit decision.

“SB2 is unjust and distorts the true meaning of religious freedom,” Beach-Ferrara said. “From day one, it’s been clear that SB2 is about one thing – finding a new way to discriminate against same-sex couples and privileging one set of religious beliefs over others. We will keep standing up to discrimination until LGBTQ North Carolinians are equal in every sphere of life.”

The law allows a magistrate in North Carolina to opt out of performing same-sex marriages. However, a magistrate who obtains an exemption can perform no marriages whatsoever for a six-month period. At the end of that period, magistrates can renew their request for an exemption that would last another six months.

SB2 requires at least one magistrate who can perform marriages to be present within a county office at least 10 hours per week, over at least three business days per week.

According to the North Carolina Administrative Office of the Courts, the state has 31 magistrates who currently aren’t performing marriages.

The North Carolina Legislature approved SB2 two years ago amid a series of court rulings in favor of marriage equality. Ironically, former Gov. Pat McCrory, who became infamous for signing anti-LGBT House Bill 2, vetoed the measure on the basis it defied court rulings for marriage equality. The legislature overrode his veto shortly afterward.

Among the friends-of-the-court supporting the state in litigation were the North Carolina Values Coalition, the Thomas More Law Center, the Christian Legal Society and the National Association of Evangelicals.

Tami Fitzgerald, executive director of the North Carolina Values Coalition, applauded the 4th Circuit decision in a statement as win for religious freedom.

“The NC Values Coalition applauds the 4th Circuit’s ruling upholding North Carolina’s magistrate recusal law, which simply recognizes that every citizen, even government employees, has the right to exercise their religious beliefs about marriage,” Fitzgerald said. “The court rightly held that taxpayers have not been harmed by the law, and that the law accommodates the rights of magistrates and registers of deeds to exercise conscientious objection to same-sex marriages by recusing themselves, while also insuring that same-sex couples have the ability to get married.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

  • customartist

    So, based upon the premise of this ruling, there would have been no “standing” for those [non-same-sex individuals and groups] who opposed same-sex marriage to be in the courts in the first place? They could prove no direct damages, and this is why THEY lost that battle.

    So now in order for the battle to be won in North Carolina, there must be a couple to apply to be married under one of the refusing judges, be denied, and then file suit, in order to have proper standing.

  • Larry W. Jones

    What would happen if ALL the taxpayers of North Carolina stopped paying their state taxes? Maybe the state legislators would wake up and smell the coffee.

© Copyright Brown, Naff, Pitts Omnimedia, Inc. 2017. All rights reserved.