Magistrates in a northwestern North Carolina county are refusing to perform same-sex marriages, citing the state’s religious exemption law, and officials in a neighboring county are instead performing those duties.
Four McDowell County magistrates recused themselves from performing the ceremonies, WLOS-TV in Asheville reported Thursday. McDowell has worked out a trade with Rutherford magistrates to drive to McDowell and provide marriage services three days a week for at least 10 hours as required by law.
Supervising Judge Randy Poole said that, by law, the McDowell magistrates cannot perform any kind of marriages for six months if they refuse to wed gay couples.
State lawmakers adopted a measure in June that allows court officials to refuse to perform gay marriages because of their religious beliefs. Gov. Pat McCrory vetoed it, but the N.C. Senate and House overrode his veto.
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North Carolina’s new law directs the chief District Court judge in the region to provide a stopgap to preside over marriages if no magistrates are available because of recusals. The judge can assign magistrates from other counties within his or her geographic region to ensure marriages are performed in a county where no magistrates are performing marriages, according to the state court system.
Rutherford and McDowell counties are in the same judicial jurisdiction.
Nonetheless, the North Carolina law violates the U.S. Constitution’s requirement that state governments operate in a “religiously neutral” fashion, said Columbia University Law School Professor Katherine Franke. Franke said the state was placing a burden on people looking to get married.
“Clearly the costs of public officials’ religion liberty rights are being shifted to the citizens of North Carolina who have limited access to public offices that issue marriage licenses and to other state employees who are pulled away (from) their duties elsewhere,” Franke said. “Much more, the North Carolina law, on its face and as applied in these cases, builds a preference for religion into the law itself by granting the religious views of some public officials special protection.”
The North Carolina magistrates’ refusal to perform gay-marriage ceremonies comes amid a national furor unleashed by a Kentucky clerk’s earlier refusal to issue marriage licenses to gay couples. County clerk Kim Davis’ action was the boldest one yet by a public official in defiance of a recent U.S. Supreme Court decision that effectively legalized gay marriage nationwide.
Davis, an Apostolic Christian who cited “God’s authority” and her belief that gay marriage is a sin, spent five days behind bars for contempt of court. Her actions made her a hero to many on the religious right. A judge released her on Wednesday, saying he was satisfied that her deputies were fulfilling their obligation to grant licenses in her absence.
But U.S. District Judge David Bunning also warned Davis not to interfere again, or else she could wind up back in jail. Davis is scheduled to return to work Monday. Her lawyer refused to say whether she would defy the courts again.