Accommodate without bias

The N.C. House may soon decide the fate of SB2, vetoed by Gov. Pat McCrory for exempting public officials “from upholding ... oath[s]” to the Constitution. It seems inexplicable that three-fifths of the Senate immediately overrode the veto if SB2 is a relic of the “South’s segregationist past.”

How can this be? In part, rhetoric outstripped facts.

SB2, some charge, is a “transparent attempt to deny gay ... couples the freedom to marry.” However, for the first time, N.C. law would create a duty for some official to solemnize marriages of all North Carolinians.

Guaranteed access means same-sex couples will be able to marry. If the veto stands, guaranteed access is lost.

SB2 also permits magistrates to recuse themselves from solemnizing any marriage. Recusal lasts six months. And there’s the rub.

Imagine Steve and Adam arrive to be married. If a magistrate, Faith, objects, she can recuse herself; another will solemnize. But the affront to Steve and Adam in being handed off remains.

Is a more respectful process possible without firing Faith?

Imagine an arrangement with three officials, Faith, Hope and Charity. Only Faith objects. Charity could greet the public and farm out work, leaving Faith to perform other duties – issuing subpoenas, taking affidavits – never encountering Steve and Adam. Faith does not receive a pass; she performs other office functions.

Note what does not happen: Steve and Adam are not asked to step into another line or wait longer. They receive services exactly as every other couple, never knowing any individual magistrate’s views. Dignitary harms evaporate when accommodations are invisible.

Crucially, accommodating different religious beliefs, even for government employees, runs throughout the law. Title VII requires employers to reasonably accommodate employees’ religious beliefs absent undue hardship.

Despite its bad rap, SB2 seeks to do a good and decent thing: balancing gay rights with religious liberty. Every state that voluntarily embraced same-sex marriage included religious accommodations. Although by no means perfect, these protections avoided unnecessary clashes.

Representatives should ask themselves, can accommodations under SB2 be invisible? If so, then same-sex marriage and religious dissent can coexist. Like North Carolina’s motto, it is far more important to be actually pluralistic than simply seeming to be.

Robin Fretwell Wilson is a professor of law at the University of Illinois and recently assisted the Utah Legislature to enact the Utah Compromise balancing LGBT rights and religious liberty.

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