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NC Senate’s move to exempt magistrates rekindles gay marriage debate

The state Senate’s 32-16 vote Wednesday to exempt magistrates from wedding duties highlights the bitter divide that remains four months after the state’s first same-sex weddings.

Opponents of gay marriage remain upset about a federal judge’s October decision that overrode North Carolina’s constitutional amendment defining marriage. They see the exemption for magistrates – which also would apply to register of deeds employees – as one of the few steps state leaders can take to blunt the ruling’s effect.

Same-sex marriage proponents, however, view the bill as a discriminatory effort that is part of what they see as a long-term, losing battle. They compare the bill to the “separate but equal” accommodations of the South’s segregationist past.

That tension played out in a heated debate Wednesday on the Senate floor that stretched for nearly two hours. And it left four moderate senators stuck in the middle: Two Democrats and two Republicans cast uncomfortable votes that were not in line with the rest of their own parties.

Sen. Jeff Tarte, a Cornelius Republican, voted against the bill despite what he said was his own religious belief that same-sex marriage is wrong. Tarte said he struggled with the vote, but he decided that magistrates must follow the instructions every jury receives: Uphold the law – even if you don’t agree with it.

“This keeps me up at night like you would not believe,” Tarte said. “This is about trying to do the right thing.”

Tarte and Sen. John Alexander of Raleigh were the only Republicans voting no. Alexander didn’t speak during the floor debate.

On the other side of the aisle, Democratic Sens. Ben Clark of Raeford and Joel Ford of Charlotte were heavily criticized on social media for voting yes. One Twitter user called them traitors who should leave the party.

Clark spoke on the floor after the vote to explain his position, calling the bill a “fair and reasonable compromise.”

“I have experienced discrimination over the course of my life,” said Clark, who is black. “I know discrimination when I see it. This is not discrimination.”

Supporters of the bill stress that the legislation doesn’t allow discrimination because employees seeking the exemption can’t perform any wedding duties for at least six months.

“I will not stand idly by and watch the demands of a few insist that a magistrate perform a wedding that he or she strongly believes to be immoral,” said Sen. Buck Newton, a Wilson Republican who co-sponsored the bill. He blamed the conflict on “some wise old judges that think they know better than us, that they know more than God.”

But Democrats argue the bill could open the door to others seeking religious exemptions: Magistrates who oppose interracial marriages might also seek the recusal. County public health nurses might refuse to provide contraceptives. Or N.C. Zoo ticket takers might want out of selling family passes to gay parents.

“Can you not see that this bill takes us down a road that we must not go?” said Sen. Josh Stein, a Raleigh Democrat.

First substantive bill

A statewide poll conducted by Elon University last week reports that 47 percent of North Carolinians oppose gay marriage and 44 percent support it – and the margin of error was 3.33 percentage points.

Given the strong feelings surrounding the issue, some senators questioned why the leadership chose it for the session’s first substantive bill.

“I was looking forward to coming here to work on issues that are important to North Carolina, like jobs and education,” said Sen. Jane Smith, a Lumberton Democrat in her first term. “Instead, the first bill introduced to this chamber is a socially divisive bill that will surely be challenged in court.”

But Senate leader Phil Berger, the bill’s primary sponsor, said First Amendment rights should be the top priority.

“If we’re not about holding up the rights guaranteed by our constitution in this body, then all the other stuff eventually is not worth very much,” he said. “We’re not saying that the First Amendment outweighs any other right that might exist. We’re saying there should be an accommodation when there is a conflict.”

FAQ about the bill

Can magistrates and register of deeds workers refuse to serve same-sex couples while still performing heterosexual marriages? No. Any employee who applies for the exemption cannot perform any marriage-related duties for at least six months. But Sen. Angela Bryant, a Rocky Mount Democrat, said she worries employees won’t request an exemption until a gay couple arrives. “An employee can pick and choose the time at which they recuse themselves,” she said.

Employees who want to continue avoiding same-sex unions must apply to opt out of all weddings every six months.

What happens if everyone on duty is exempt from marriages? The chief District Court judge in each county would be responsible for ensuring that weddings are offered for at least 10 hours per week and on three business days – but that’s less than what many counties offer now. In some cases, district court judges might have to perform marriages themselves.

Sen. Mike Woodard, a Durham Democrat, said that would create problems. “This bill minimizes all legal civil ceremonies, reducing them to inconvenient times, forcing them onto elected officials, causing disruption in busy offices and court schedules,” he said.

Would the exemptions survive a court challenge? Both sides of the debate say they expect the state would face a lawsuit if the bill becomes law. Opponents of the bill argue that it could be found unconstitutional, while supporters saw it’s carefully written to avoid any discrimination claims. And the state’s already being sued by several magistrates who don’t want to perform gay marriages.

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