The North Carolina Senate approved on Wednesday a plan to allow magistrate judges who oppose same-sex marriage on religious grounds to refuse to preside over any wedding.
The proposed legislation, which passed on a mostly party-line 82 to 16 vote, is a direct response to federal court rulings in October of 2014 that struck down North Carolina’s constitutional ban on same-sex unions.
The Republican authors of Senate Bill Two, including the chamber’s most powerful member, Sen. Phil Berger (R-Rockingham), said they were tailoring the bill to abide by federal court rulings while respecting a magistrate’s right to religious freedom. The bill authors say that about six of the state’s more than 650 magistrate judges have resigned as a result of the October rulings.
“The federal court decision in October has thrown us a curve ball,” Sen. Buck Newton (R-Rocky Mount) said in a hearing Wednesday. “We need to establish a framework on which reasonable accommodation for sincerely held beliefs can be done.”
But gay-marriage supporters who oppose the bill said it opened the possibility for discrimination if a magistrate judge were to recuse him or herself at the moment that two people of the same gender applied for a marriage license.
Under the bill, magistrate judges wouldn’t be able to choose between gay or straight weddings – they would have to recuse themselves from officiating at any wedding. County courts would be required to offer wedding services for at least 10 hours over three days of the week. Clerks who resigned as a result of the court rulings would be eligible to apply for an opening and be compensated for back pay.
“We’re not saying that the first amendment outweighs any other right that might exist,” Berger said. “What we’re saying is there should be an accommodation when there is a conflict between rights.”
However, some Democrats said the proposal would have a broad impact throughout state government if it were to become law. Sen. Josh Stein (D-Wake) said that, for example, a clerk at the Department of Revenue could refuse to process a married gay couple's joint tax filings if the union is contrary to his or her religious beliefs. He gave other examples: a clerk at a zoo refusing to sell lesbian parents family tickets, or a Division of Motor Vehicles employee could refuse to change a married gay couple's last names on their driver's licenses.
“Because of your logic, you’re discriminating against people’s religious beliefs if you’re denying them their right to discriminate against gay people,” Stein said.
If the bill were to become law, it's likely it would be challenged in court. On the Senate floor yesterday, Republicans and Democrats debated whether such a law would be constitutional. Newton argued with Sen. Floyd McKissick (D-Durham).
Newton asked: “Do you recall that that was the conversation we had yesterday, and that this was a constitutional bill?"
McKissick responded: “I think what I indicated in my remarks to you and perhaps to others was that was a very cleverly designed bill that would essentially lawfully allow discrimination, but it would potentially withstand judicial scrutiny.”
Senate Bill Two will now go to the state House of Representatives for consideration.