Todd Paris: Belief or prejudice? Brock bill raises legal questions

Published 12:00 am Wednesday, March 4, 2015

By Todd Paris

Special to the Salisbury Post

N.C. President Pro-Tem Phil Berger has introduced Senate Bill 2 “Magistrate’s Recusal of Civil Ceremonies.” It is co-sponsored by Sen. Andrew Brock, a Republican who represents most of Rowan County. The obvious intent is to allow magistrates to refuse to marry same-sex couples after the U.S. Supreme Court denied to review the 4th Circuit’s decision in Bostic v. Schaefer. That court’s majority conclusion was that “Virginia’s same-sex marriage bans impermissibly infringe on its citizens’ fundamental right to marry.” Since North Carolina is in the Fourth Circuit, our own very similar ban died by virtue of the U.S. Supreme Court’s refusal to review this decision.

There is a legitimate legal issue for individual magistrates and deputy and assistant register of deeds that do not wish to assist in same-sex marriages in that N.C. Gen. Statute 14-230 establishes a misdemeanor penalty for refusing to perform the duties of their office. S.B. 2 would allow these state employees to refuse to take part in the civil marriage process based upon any “sincerely held religious objection” and prohibit disciplinary action or criminal prosecution for such refusal. If all deputy and assistant registers of deeds refuse to issue marriage licenses, then the elected register of deeds must issue the license him or herself. If all magistrates refuse, then it falls to the chief district court judge. It would seem, technically, to allow same sex marriages to still happen, though place the responsibility on these two elected officials. I am not sure if 14-230 applies to these two elected officials.

Senate Bill 2 would make bad law. Hopefully, the House will reject it. How do you decide if a magistrate or register has a “sincerely held religious belief” as opposed to mere prejudice? Do we establish a committee to review the church attendance and tithing history of those seeking to be excused? Do we want to place a state official in charge of determining the sincerity of another’s religious beliefs? What standards do we use?

Please note that this proposed law does not mention “same-sex marriage” anywhere. It allows recusal from marriage related duties for any “sincerely held religious belief.” What happens if the magistrate and register attends a fundamentalist church that does not believe in “mixed marriages?” What happens if a conservative Catholic magistrate or register does not believe in second marriages?

A bad precedent for the future arises if other government employees also demand recusal from duties deemed religiously onerous. There are churches and mosques that literally interpret verses in the Koran and Old Testament that allow husbands to physically discipline their wives.  Will law enforcement officers be allowed to refuse to arrest at domestic violence calls due to their “sincerely held religious beliefs?” If a magistrate becomes Rastafarian can he refuse to issue warrants on marijuana possession?

Then again, maybe when you take an oath of office which includes upholding the U.S. Constitution, it also includes the United States Supreme Court’s decisions, even those you don’t like. If you can’t do that, well, maybe you need to find another avocation. I wonder what went on back in the ‘50s when magistrates and registers were first forced to assist in mixed marriages. I feel like we have been here before and ought to know better.

Todd Paris is an attorney who lives in Salisbury.