Lawsuit challenges gay marriage law in North Carolina

The battle over gay rights in North Carolina reignited in federal court Wednesday.

Three couples challenged the new law that allows judicial magistrates to "opt-out" of performing same-sex marriages. If they do, they have to recuse themselves from performing all marriages. But where supporters of the law say that makes it non-discriminatory, opponents disagree.

"The animus against the LGBT community was very clear," Equality NC director Chris Sgro said, "and the intent of the law was clear. That is to target same-sex couples above and beyond other couples. That is unconstitutional. You can't treat two classes of people differently when they both have the same right to marriage equality."

Sgro is heading up a public awareness campaign as the lawsuit begins a potentially long slog through the court system.

Co-lead counsel for the groups bringing the suit, Jake Sussman from Tin Fulton Walker & Owen, said, "Senate Bill 2 undermines the constitutional integrity of our judicial system. It empowers magistrates who abdicate their judicial obligation to protect the constitutional rights of all citizens as established by the Supreme Court and keeps in office those who believe as a matter of faith that gays and lesbians are not full citizens."

Sgro agreed.

"It sets a dangerous precedent," he said. "Government officials have to do the entirely of their job. They've sworn an oath of office. Magistrates have to carry out these weddings, same-sex weddings. Magistrates can't opt out of that."

But supporters of the law said Sussman, Sgro and other opponents are missing a critical nuance in state statute.

"The whole lawsuit was based upon the assumption that there's a duty of magistrates to perform marriages," said Tami Fitzgerald with the North Carolina Values Coalition, "and that's an incorrect assumption. It's incorrect legally because the statute says it's an additional authority. So it's optional for magistrates and registers of deeds. It's not a duty."

Fitzgerald directed us to the statute that backs that up. Still, Governor Pat McCrory made the same point as Sgro when he vetoed Senate Bill 2 - a veto the Republican-led legislature later overrode.

So far, 32 magistrates have opted out of performing marriages. In McDowell County, all magistrates have recused themselves and, to adhere to the new law, the county has resorted to bussing in magistrates from neighboring counties to perform marriages. But as critics point out, that comes at a cost to taxpayers and limits availability for marriages to just 10 hours a week.

"They've closed offices. They've bussed magistrates from other counties at a cost to the taxpayer. So they've been having people jump through and twist sideways to get to the point where they can say, 'Oh, you can't point to anyone who's been specifically discriminated against.'"

As Fitzgerald points out, though, critics "can't point to one single case where a homosexual couple has been denied the right to get married. They challenged a lawsuit based on a law they don't like. What Senate Bill 2 does, it balances the right of homosexual couples to get married against the rights of an employee, including a government employee, to follow their religious beliefs, even when they're on the job. And we have a First Amendment right to exercise religious beliefs.

"The question is," Fitzgerald continued, "whether Attorney General Roy Cooper is going to step up and do what he was hired to do by the people of North Carolina."
Cooper says he disagrees with the law but will defend it in court.

"That's good," said Fitzgerald, "That's a fine state of affairs, isn't it? 'I don't believe in the law, but I'll defend it.' Let me drag you to the altar."

The full complaint can be viewed here:

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