Federal judges are set to hear arguments Wednesday on the North Carolina law that allows magistrates to refuse to marry same-sex couples by citing religious beliefs, then opting out of performing all marriages.
The law was passed in 2015 in the Republican-controlled General Assembly despite a veto by former Republican Gov. Pat McCrory.
The case goes before a panel of judges on the 4th U.S. Circuit Court of Appeals in Richmond, Va., about eight months after U.S. District Judge Max Cogburn dismissed a lawsuit filed by three couples who challenged the law.
Cogburn ruled that the couples lacked legal standing as taxpayers to sue “by virtue of the fact that their claims are merely generalized grievances with a state law with which they disagree.”
The couples, Cogburn continued, had not “alleged, let alone submitted affidavits or other evidence, showing any injury in the form of direct harm that might allow the court to find standing on grounds other than taxpayer status.”
The judge, though, did not rule out the potential for other challenges of the law by people who could show harm.
Under the law, the state court system doesn’t have to reveal which magistrates have opted out of their responsibility to perform marriages.
“A law that allows a state official to opt out of performing some of the duties of the office for sincerely held religious beliefs, while keeping it a secret that the official opted out, is fraught with potential for harm that could be of constitutional magnitude,” the judge wrote.
The three couples – Kay Diane Ansley and Catherine McGaughey of McDowell County, Carol Ann and Thomas Roger Person of Moore County and Kelley Penn and Sonja Goodman of Swain County – are challenging that ruling, saying their tax dollars should not go “to aid, promote, and endorse” a state law that creates and allows “a religious exemption from the judicial oath of office and the duty to marry all citizens.”
They argue that such mandated spending by the legislature “to promote religion against their conscience” not only gives them the legal right to challenge the law merely as taxpayers, but also violates the 14th Amendment and its equal protection clause.
At the time the lawsuit was filed, roughly 5 percent of North Carolina’s magistrates were refusing to marry same-sex couples for religious reasons. That included every magistrate in McDowell County.
Under the law, magistrates are to be brought in from another county to perform marriages.
In a hearing on the case in August, Cogburn said he was bothered that when magistrates who claim a religious exception fill out a form saying so, court administrators appear to require that it be kept secret.
Gay couples who come before a local judge for an eviction or small claim have a right to know if that judge won’t marry gays, he said.
“When litigants come to you, they have to know they are getting a fair shot,” Cogburn said.
Advocates of the law, such as Sen. Phil Berger, president pro tempore of the state Senate, say the challengers were unable to show that anyone had been unable to marry because of a magistrate’s recusal.
After Cogburn’s ruling, Berger called it a “reasonable law which protects fundamental First Amendment rights.”
But gay rights advocates argue that the law is discriminatory.
“This law distorts the true meaning of religious freedom,” the Rev. Jasmine Beach-Ferrara, executive director of the Campaign for Southern Equality, said in a statement this week. “From the day it was proposed, it’s been clear that SB2 is about one thing and one thing only – finding a new way to discriminate against same-sex couples. We will keep standing up to discrimination until LGBTQ people are equal in every sphere of life.”