Lawyers Argue Over Law That Lets Magistrates Opt Out Of Performing Gay Marriages

May 11, 2017

Lawyers for the state of North Carolina and three gay couples argued in federal appeals court Wednesday over a state law that lets magistrates refuse to perform gay marriages on religious grounds. At issue is whether the couples have the right to sue, even if another magistrate performs the service. 

The three couples sued the state last year to challenge the law known as Senate Bill 2. The Republican-controlled legislature passed the law in 2015 to protect magistrates after gay marriage became legal nationwide.  

Fourth Circuit Court of Appeals, Lewis F. Powell Jr. Courthouse
Credit Taber Andrew Bain from Richmond, VA, USA [CC BY 2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons

A lower court dismissed the suit, saying the couples lacked standing as taxpayers and failed to show they were harmed directly by the law. The couples appealed to the Fourth Circuit Court of Appeals in Richmond, Virginia, where the case was heard Wednesday.

The law says magistrates can refuse to perform gay marriages for religious reasons. If no magistrates are available in a given county, willing magistrates from other districts must be reassigned to provide the service in that county.  

Lawyer Luke Largess says spending money to support magistrates’ religious beliefs violates the First Aamendment's separation of church and state.

"The violation (of) the First Amendment is the extraction of tax money and spending it for a religious purposes," Largess said.

But the state's lawyer, Olga Vysotskaya de Brito, told the three-judge panel the law strikes a balance  between complying with the gay marriage law and respecting magistrates' religious beliefs.

"SB 2, while allowing religious accommodations, at the same time requires that if there is a situation there is not an agreeing magistrate in the county, that another magistrate is available," she said.

Two of the judges said the law concerns them. If the couples had demonstrated that they were unable to get married, they'd have a case under the Constitution’s equal protection clause. But the judges weren't sure the argument about taxpayer funds holds up.

Judge J. Harvie Wilkinson III said if the court barred the state from spending taxpayer dollars to move magistrates around that could actually make gay marriages more difficult to get in some counties.  

A decision on the case is expected the next few months.