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Director of NC Administrative Office of the Courts Responds to Senate Republicans, Continues to Advocate Magistrates Must Perform Gay Marriages

By Pam Blume
Christian Action League
November 7, 2014

Gay MarriaeIt was reported last week that North Carolina Senate President Pro Tem Phil Berger had sent a letter to Judge John Smith, director of the NC Administrative Office of the Courts, stating that magistrates that hold strong religious objections should not have to choose between giving up their jobs or performing same-sex marriage ceremonies. Berger and other Senate Republicans had cited other judicial rulings that they contend set precedence for an exemption on account of religious convictions.

In a lengthy response letter dated November 5, Judge Smith expressed concern “…that the widespread publicity may have misled magistrates as to their legal rights and remedies and that some may have relied to their detriment on its representations.”

Concerning the previous rulings on the accommodation of religious conscience, Smith stated that “…Any magistrate relying on the letter expecting relief from the EEOC under Title VII needs to be aware that none of the cases provide coverage of judicial officials acting in their official capacities. It is important to note that our guidance must be read in the context of federal court injunctions binding on the courts and all the judicial officials in North Carolina. Two U.S. District Court Judges explicitly ordered that we immediately begin complying with the rulings.”

Smith also stated that “We recognize that the statutory powers and duties of magistrates are entirely within the province of the legislature. While I agree that it is arguable that a magistrate may not be required by statute to officiate over marriages since the statute (G.S. 7A-292) speaks in terms of ‘additional powers’ rather than ‘duties,’ the law is now clear that any magistrate who does officiate over marriages must comply with the court rulings mandating equal treatment as to same-sex marriages.”

Smith made it clear “…that I respect our magistrates who hold sincere and deep religious beliefs that have placed them in conflict with the duties of their appointed judicial office. Those who have resigned demonstrated their thoughtful choices in resolving their moral dilemmas.”

He stated that one magistrate told him that he had reconciled the conflict between his religious beliefs with his required duties by differentiating between a civil marriage ceremony and a religious sacrament of holy matrimony performed by a minister, but that “…Many others have seen clearly the dilemma that this recent and sudden change in our law creates, and have made hard decisions as they resolve the inherent conflict that confronts them. Our magistrates swear that they will ‘support the Constitution of the United States’ before they are allowed to take their office. Whether we agree or disagree with the holdings, the courts have defined the scope of due process and equal protection under the Constitution of the United States on this issue. Unless and until those holdings are stayed, modified, or reversed, our magistrates are affirmatively bound by those rulings in exercising their official powers. We will continue to monitor this area of the law and remain prepared to administer any legislative changes in the duties and powers of our magistrates.”

“I believe these magistrates should stand their ground and refuse to perform same-sex weddings,” said Dr. Mark Creech, executive director of the Christian Action League of North Carolina.  “I deeply appreciate their commitment to their Christian convictions in giving up their positions. In fact, I am deeply moved by it. But I believe they should not give up their post, but prepare for a legal fight. Our state and nation is depending on them to defend our first right – our right to religious liberty. I believe providence placed them where they are  for this moment in time. If they give up their post, there can be no defense of liberty. There are great Christian legal organizations like Liberty Counsel and Alliance Defending Freedom, as well as others that would be willing to take their case,” he added.

Senator Berger has said he plans to file legislation in the upcoming long session that would give clear protection to the religious beliefs – and the jobs – of magistrates, registers of deeds and their employees who, for reasons of faith, decline to participate in same-sex marriage ceremonies.