North Carolina just passed a law that allows magistrates to refuse to perform gay marriages – or any others – if the marriages violate their religious beliefs. It’s a terrible idea, of course, allowing public employees to skip out on their official obligations based on their private beliefs. But is it unconstitutional? And if so, why?
The law is compactly written: North Carolina officials can “recuse” themselves from performing marriages or issuing marriage licenses that would violate their religious beliefs.
The effect of the law may well be to make it harder for gay couples to get married in North Carolina. It will remain in effect, no matter what the Supreme Court rules this month on gay marriage. But on its face, the law doesn’t affect the right to marry. Rather, it establishes a new right for in-state officials not to preside at same-sex marriages.
I can think of several arguments that could render the law unconstitutional. But none of them is a slam-dunk.
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The first is that the law effectively blocks gay marriage in the state, thus violating the equal protection of the laws. A federal judge previously ruled that same-sex marriage must be permitted in North Carolina. In practice if gay couples can’t find a magistrate to marry them, then the new law would be interfering with their constitutional rights as found by the federal judge.
The difficulty with this argument is that gay couples may in fact be able to find other public officials to marry them. Would it violate the couples’ equal protection rights if they had to drive one town over to find a magistrate willing to marry them? The answer might be yes, if it systematically disadvantaged gay couples. But there’s no certainty that a court would find that the religious scruples of the individual magistrate created an equal protection violation.
A related yet distinct equal protection argument would be that the law is intended to discriminate against gay couples, and therefore lacks a legitimate, rational basis.
Yet as written, the law facially does have a rational legitimate basis, namely the protection of the religious liberty of state officials. A court in theory could find that the law’s true, underlying intent was anti-gay animus. But that result seems relatively unlikely given that religious groups across the country have been concerned about the liberty of ministers, priests and rabbis not to perform gay marriages.
That brings us to the separation of church and state. It could be argued that the North Carolina law amounts to an establishment of religion, because it creates an exemption from a generally applicable law specifically for religious objections to marriages that are in fact civil acts.
This is a tricky argument. In general, the government may pass laws that accommodate religious dissenters. The federal Religious Freedom Restoration Act is a good example. It requires religious exemptions from any neutral, generally applicable federal law provided that the law burdens the religious believer and is not narrowly tailored to avoid doing so. RFRA is consistent with the Constitution.
But there are two important differences between the North Carolina law and RFRA. One is that RFRA applies to private individuals, not government employees. A law that allows government officials to avoid their official duties for religious reasons has the effect of establishing the officials’ religion as the law of the state.
The second crucial difference is that the North Carolina law doesn’t provide for any balancing test in which the interests of the couple seeking to be married or the government’s interest in equality are weighed against those of the public official.
In a 1985 case called Thornton v. Caldor, the Supreme Court struck down a Connecticut law that created an unqualified right for Sabbath observers not to be disciplined for refusing to work on whatever day they considered their Sabbath. The law said that “an employee’s refusal to work on his Sabbath shall not constitute grounds for his dismissal.”
The court, in an opinion by then-Chief Justice Warren Burger, struck down the law as violating the establishment clause. Burger reasoned that it was an unconstitutional advancement of religion to treat the interests of religious Sabbath observers as absolute, without considering in any way the countervailing interests of employers.
Applying the logic of the Caldor case, the North Carolina law would be unconstitutional because it does not provide any balancing test. Indeed, the North Carolina law is pretty clearly much worse than the Connecticut law struck down.
Noah Feldman is a professor of constitutional and international law at Harvard University.