Another step on the path to true equality

The Observer editorial board

Rev. Robin Tanner and Rev. Ann Marie Alderman sought to get married in Mecklenburg in 2013.
Rev. Robin Tanner and Rev. Ann Marie Alderman sought to get married in Mecklenburg in 2013. dlaird@charlotteobserver.com

It should be undisputed that equality under the law is a desirable characteristic of society. The fight for it, alas, seems never-ending. The quest continues Wednesday with the filing of a complaint in federal court against North Carolina’s Senate Bill 2, known by many as the magistrates’ bill.

Charlotte lawyers Jake Sussman and Luke Largess, whose arguments got the discriminatory Amendment One overturned last year, will file with others a complaint on behalf of three N.C. couples.

Senate Bill 2, passed by the legislature over Gov. Pat McCrory’s veto in June, allows magistrates and registers of deeds to opt out of performing duties related to marriage if doing so would violate “any sincerely held religious” belief. It was a response to a federal court declaring gay marriage legal in North Carolina.

The complaint to be filed Wednesday in U.S. District Court in Asheville rightly argues that Senate Bill 2 violates the First and 14th Amendments in multiple ways.

First, the law uses taxpayer money to allow magistrates to violate their oath of office on religious grounds. The law provides that if all the magistrates in a county opt out, the state shall send replacement magistrates from another county to ensure that marriages are performed.

That has happened in McDowell County, the complaint says. All four magistrates there opted out, forcing a magistrate to travel regularly from Rutherford County to fulfill their job duties.

The law also provides that any magistrate who resigned because of religious beliefs and then was reappointed within 90 days of Senate Bill 2’s passage would receive credit toward retirement for that gap in service.

Both of those provisions have cost the taxpayers money to further a religious aim, a violation of the First Amendment’s Establishment Clause, the complaint says.

Senate Bill 2 also violates the Due Process Clause and the Equal Protection Clause of the 14th Amendment, the complaint says. Even if a gay couple ultimately successfully marries, their rights are violated by public officials treating them as second-class citizens.

Sussman and Largess also point out that gay residents could face magistrates for any number of civil and criminal matters, and would know their cases are being handled by someone who believes they are not accorded the same constitutional protections as straight constituents.

Magistrates, like all N.C. judicial officials, take an oath swearing to uphold the U.S. Constitution. The U.S. Supreme Court has ruled that the 14th Amendment protects gay couples’ rights to marry. So the 32 N.C. magistrates who have recused themselves are violating their oath and the First Amendment’s Establishment Clause. This clearly would not be tolerated if instead of a gay couple, a magistrate objected to marrying an interracial couple.

Senate Bill 2 supporters point out it doesn’t block gay couples from marrying. That’s true, but the government is treating some citizens differently from others, an inherently discriminatory practice. The court should side with the plaintiffs, and take us one step closer to universal equality under the law.