A divide over same-sex marriage that has split magistrates in North Carolina may be deepened by a federal court ruling Thursday that says courts should not compel states to approve such unions.
Within hours of a split ruling by a 6th U.S. Circuit Court of Appeals panel upholding gay marriage bans in four states, attorneys for North Carolina legislative leaders filed notice in the federal courts of their plans to appeal rulings in North Carolina that struck down a gay marriage ban.
The court document, filed by John C. Eastman, a California lawyer and chairman of the National Organization for Marriage, outlines the plans of Phil Berger, president pro tem of the N.C. Senate, and Thom Tillis, speaker of the state House, to appeal a ruling in October by U.S. District Judge William Osteen Jr. that nullified a 2012 amendment to the state constitution defining marriage as a union between a man and a woman.
Though Osteen allowed the legislators to intervene in the case on a narrow basis, Eastman’s notice states that the Republican legislative leaders do not believe that the federal district court put limits on their arguments during appeal. The activity comes in the same week that the head of the N.C. Courts clarified his position on the obligations of magistrates in this state to perform marriages for same-sex couples.
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John W. Smith, director of the N.C. Administrative Office of the Courts, said this week that he worried that Republican legislative leaders might have “misled” magistrates several weeks ago into thinking that federal law permitted them to opt out of performing such marriages. Smith outlined his concerns in a three-page letter to Berger, an attorney from Rockingham County.
“While many state officials may desire to provide protection and accommodation to our magistrates who would prefer not to comply with the court order because of religious convictions, our magistrates need to be aware of the potential consequences ,” Smith stated in his letter to Berger, dated Nov. 5.
Smith was responding to a letter submitted by 28 state senators who challenged a guide sent to court officials across the state after gay marriage became legal in North Carolina. The letter, sent by Berger, called on the court system to revise its direction to court officials and advise them “of federal and state protections afforded to employees who, for reasons of religious faith, cannot participate in the recently court-sanctioned same-sex marriage ceremonies.”
Smith’s letter to Berger was distributed and lauded by gay-rights advocates before a three-judge federal appeals court panel issued a ruling upholding gay marriage bans in Kentucky, Michigan, Ohio and Tennessee.
The 2-1 decision in the 6th U.S. Circuit Court of Appeals contradicts rulings by four other federal circuit courts. The 4th U.S. Circuit Court of Appeals, which presides over North Carolina cases, followed the same path as three other circuit courts when it nullified a Virginia ban, thereby opening the door to gay marriages in North Carolina.
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The 4th Circuit said barring same-sex marriage violates equal protection or due-process clauses of the U.S. Constitution.
Following the 4th Circuit, the two rulings in North Carolina in October – from Osteen and U.S. District Judge Max O. Cogburn Jr. – set off a flurry of same-sex weddings and celebrations.
Advocates of the ban, though, did not rejoice. At least six magistrates have resigned since the historic ruling on Oct. 10. Though registers of deeds issue marriage licenses in N.C., magistrates do civil marriage ceremonies and other duties.
“I want to assure you and all of the people of our state that I respect our magistrates who hold sincere and deep religious beliefs that have placed them in conflict with the duties of their appointed judicial office,” Smith said in his letter this week to Berger. “Those who have resigned demonstrated their thoughtful choices in resolving their moral dilemmas. At the same time, other magistrates with equally sincere and deep religious beliefs recognize a quite clear distinction between marriage as a civil ceremony conferring legal status, and marriage as a religious institution quite apart from temporal concerns.”
Smith referred to a note he received from the Forsyth County chief magistrate, who also is an ordained minister.
“Should magistrates be required to either quit their jobs or violate their conscience in being forced to marry people? It is a matter of Church vs. State,” C. John Phillips, the Forsyth County magistrate, said in his note to Smith. “(I)n this area the Scripture gives us guidance.”
Phillips cited a verse from Matthew – “Render unto Caesar that which is Caesar’s and unto God that which is God’s” – to bolster his point about the separation of church and state.
“Civil marriage is an act of the State,” Phillips continued. “ Holy matrimony still belongs to the church. Civil matrimony and Holy matrimony are not the same even though semantically they use the same word.”
In their October rulings, Cogburn and Osteen explicitly ordered that “all officers, agents and employees” of the state of North Carolina could not implement or enforce the ban on same-sex unions. The federal judges declared the 2012 amendment to the North Carolina State Constitution unconstitutional after the U.S. Supreme Court declined to hear a challenge to the 4th Circuit ruling that struck down a similar ban in Virginia.
“Our magistrates swear that they will ‘support the Constitution of the United States’ before they are allowed to take their office,” Smith said in his letter to Berger. “Whether we agree or disagree with the holdings, the courts have defined the scope of due process and equal protection under the Constitution of the United States on this issue. Unless and until these holdings are stayed, modified, or reversed, our magistrates are affirmatively bound by those rulings in exercising their official powers.”
Smith said none of the cases that Berger and other N.C. Senate Republicans referred to in their letter addressed judicial officials acting in their official capacities.
On Thursday, Berger disagreed with Smith’s analysis of the cases he cited in the letter submitted last month by the state senators.
“We continue to disagree with Judge Smith’s opinion and stand by the concerns raised in the letter signed by dozens of members of the North Carolina Senate,” Berger said in the statement released on Wednesday by his spokeswoman, Shelly Carver. “The fact remains the AOC’s direction to our court officials fails to account for recognized and existing workplace protections provided by federal law and the U.S. Constitution, and should be revised to encourage reasonable solutions and avoid exposing taxpayers to federal lawsuits. Ensuring these employees don’t have to abandon their religious beliefs to save their jobs is the right thing to do – and isn’t too much to ask of the court system.”
Controversies over magistrates refusing to marry couples is not new in this state. In 1977, two Forsyth County magistrates cited religious and personal objections in refusing to marry an interracial couple.
CHARLOTTE OBSERVER REPORTER MIKE GORDON CONTRIBUTED TO THIS REPORT.