North Carolina has joined a growing list of states that have introduced legislation that would allow officials with a religious objection to refuse to participate in same-sex marriages.
The measure introduced last week came ahead of expected legislation on another issue involving religious freedom and amid concerns over possible new abortion restrictions. It sets the stage for a clash between supporters of religious rights, gay rights and abortion rights and has catapulted social issues back into the headlines.
The bill by Senate President Pro Tem Phil Berger of Eden would allow magistrates and other officials to recuse themselves from performing marriages to which they object on religious grounds.
“While the courts have expanded the freedoms of some, we must not ignore the constitutionally protected rights of others,” Berger said in a statement. “This bill offers a reasonable solution to protect the First Amendment rights of magistrates … while complying with the marriage law ordered by the courts – so they are not forced to abandon their religious beliefs to save their jobs.”
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But critics say public officials can’t choose whom they serve.
“Magistrates who are sworn to uphold the law should uphold it the same way for everyone,” said Democratic Sen. Jeff Jackson of Charlotte. “This is simply a way to get around the fact that gay marriage is now legal in North Carolina.”
According to the National Conference of State Legislatures, North Carolina is among a half-dozen, mostly Southern, states with similar proposals.
They’ve come since a series of court decisions have helped spread legalized gay marriage across the country. Now 36 states and the District of Columbia allow such marriages. More than seven in 10 Americans live in places that allow it.
John Green, a political scientist at the University of Akron, said the so-called conscience measures are the inevitable reaction.
“Conscience measures are usually reactions to policy innovations,” he said. “... Because this particular law involves public officials, it could end up in court and even the Supreme Court.”
Another case involving a clash of rights did end up at the high court last year. In what’s known as the Hobby Lobby case, the court ruled that requiring certain companies to provide female employees with access to free contraception violated the Religious Freedom Restoration Act.
Rep. Paul Stam, a Wake County Republican, said he plans to introduce a state law modeled on the federal Religious Freedom act. “The Supreme Court has said the (federal) law does not apply to state action,” he said. “That’s exactly why we need it.”
The Berger bill would still require officials to issue licenses for gay marriages and officiate at marriages, even if individual magistrates or registrars were recused for religious reasons.
“If it’s against someone’s religious beliefs, they can defer it to someone else,” said Sen. Tommy Tucker, a Waxhaw Republican and co-sponsor.
“As long as the marriages can be performed, that should be enough,” said Tami Fitzgerald, executive director of the N.C. Values Coalition. “We shouldn’t override people’s deeply held religious beliefs just so they can keep their jobs.”
Critics call such measures discriminatory.
“Certainly we respect and cherish religious freedom … and that’s not being encroached on in any way,” said the Rev. Jasmine Beach-Ferrara of Asheville, executive director of the Campaign for Southern Equality. “But in the public sphere people need to be treated equally.”
Rep. Charles Jeter, a Huntersville Republican, called the bill by his fellow GOP lawmaker “a solution in search of a problem.”
“It has the potential of opening up Pandora’s box,” he said, suggesting other officials could cite religious beliefs in not carrying out their public duty.
Lawmakers also could see a renewed fight over abortion.
In response to 2013 legislation, Gov. Pat McCrory’s Department of Health and Human Services wrote new regulations for abortion clinics. They include include requiring each clinic to have a defibrillator device and a 24-hour hot line for complications that is staffed by a person.
Abortion opponents say the proposals, drafted with the help of a Planned Parenthood representative, don’t go far enough. On Friday, Fitzgerald’s Values Coalition released a six-page critique of the proposals.
“We call on DHHS to improve the rules so that the health and safety of women visiting our state's abortion clinics is the first priority,” Fitzgerald said.
Democrats and abortion rights advocates last week endorsed the McCrory administration proposals and warned against any legislative changes.
“Most North Carolinians don’t want their health care regulations written by politicians,” Rep. Rick Glazier of Fayetteville said. “It is time for the legislature to stay in its own lane.”