A federal judge on Tuesday threw out a legal challenge to a law enabling magistrates in North Carolina to refuse to perform same-sex marriage for religious reasons.
The law, Senate Bill 2, allows a magistrate in North Carolina to opt out of performing same-sex marriages, but then requires that magistrate to perform no marriages whatsoever for a six-month period. At the end of that period, magistrates can then renew their request for an exemption that would last another six months. The law 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.
SB2 has been criticized for its potential discrimination against LGBT people, but separate from the notorious House Bill 2, which LGBT advocates and the business community alike have decried for undoing LGBT city ordinances in North Carolina and barring transgender people from using restrooms in schools and government buildings consistent with their gender identity.
In December, the Charlotte-based law firm Tin Fulton Walker & Owen — in conjunction with the Campaign for Southern Equality and Equality North Carolina — filed a complaint against SB2, contending the law violates the Establishment Clause under the First Amendment and rights to due process and equal protection under the 14th Amendment.
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 court 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.
In his 38-page decision, U.S. District Judge Max Coburn, an Obama appointee who in 2014 also struck down the state’s ban on same-sex marriage, acknowledges SB2 is “fraught with potential for harm that could be of constitutional magnitude,” but rejected the challenge on the basis plaintiffs lack standing on any legally recognized capacity.
“Plaintiffs acknowledge that no court has ever allowed taxpayer standing to form the basis of a Fourteenth Amendment claim,” Coburn writes. “This court will not be the first to do so absent any authority indicating that doing so would be in accordance with law and the general principles of stare decisis. While plaintiffs present an interesting argument that SB2 runs afoul of recent due process and equal protection jurisprudence, the court ultimately finds that taxpayer standing is simply not an appropriate means for plaintiffs to bring their due process and equal protection claims before the court.”
The law was enacted in June 2015 — despite a veto from Gov. Pat McCrory, who’s now targeted for LGBT advocates for signing HB2 — as a result of an override vote in the Republican-controlled state legislature. The Washington Blade has placed a call request in with the the office of McCrory and House Speaker Tim Moore seeking comment on the decision.
Although the law requires at least one magistrate who can perform marriages to be present within a county office, media reports have documented the complications it has caused. Late last year, all magistrates in the McDowell County Clerk of Superior Court reportedly invoked the exemption, requiring magistrates from Rutherford County to fill in for officials and limiting the hours McDowell County offers marriage services.
As of Wednesday, a total of 31 magistrates as of this week have recused themselves from performing civil marriages in the state under SB2, according to the North Carolina Administrative Office of the Courts. The Judicial Branch has about 670 magistrates statewide.
Attorneys behind the challenge to the lawsuit have already filed notice they intend to appeal the decision to the U.S. Fourth Circuit Court of Appeals.
Luke Largess, a partner at Tin Fulton Walker & Owen and lead counsel in Ansley v. Warren, predicted the challenge to the law would prevail upon appeal.
“Senate Bill 2 expressly declares that magistrates’ religious beliefs are superior to their oath of judicial office to uphold and support the federal constitution,” Largess said. “And the law spends public money to advance those religious beliefs. That is a straightforward violation of the First Amendment. The court ruled that we were not challenging Senate Bill 2, but only the incidental spending by the Administrative Office of the Courts. That is clearly not the case.”