By M.H. Cavanaugh
Christian Action League
November 13, 2014
For two weeks the Christian Action League has been reporting on a war of words between N.C. Senate Republicans lead by Senate Pro-Tempore, Phil Berger, and Judge John W. Smith, director of the state’s Administrative Office of the Courts (AOC).
The letter from Berger and other Senate Republicans stated magistrates that hold strong religious objections should not have to choose between giving up their jobs and violating their religious objections by performing same-sex marriages. The letter cites federal law, the First Amendment and judicial rulings that provide an exemption for magistrates.
Nevertheless, AOC Director Smith continues to claim magistrates swear an oath to the United States Constitution, and, therefore, have a duty to perform such marriages since two federal judges have ruled the state’s marriage amendment that defines marriage as one man and one woman was ruled unconstitutional. Smith adds in his latest correspondence he believes Berger may be misleading magistrates to believe that they can opt out.
At least six magistrates have resigned their post since the state’s constitutional marriage amendment was knocked down. The AOC had sent a guidance memo to magistrates stating:
“If a magistrate refuses to discharge the duties of his or her office, including a refusal to perform a marriage of a same-sex couple, that refusal is grounds for suspension or removal from office, as well as, potential criminal charges.”
Berger’s latest letter to Smith, which was sent on Monday, is hot with righteous indignation. In the letter he thanks Judge Smith for his response, but contends Smith’s position “continues to sow seeds of doubt among courthouse officials and wrongly disregards one of our most cherished freedoms.” Berger was, no doubt, referencing a person’s religious liberty.
“As a legal matter,” Berger says Smith’s response “misunderstands the interplay between Title VII of the Civil Rights Act and the Government Employees Act of 1991, and it ignores the First Amendment and 42 U.S.C.§ 1983. Still further, its discussion of the injunctions against North Carolina’s definition of marriage rests on a false premise, as though even a simple discussion of reasonable accommodation of individual liberty prevents those court orders from being followed.”
Berger goes on to argue Smith’s “communication lacks any sort of reasonable effort to constructively guide officials at a time when such leadership is needed the most.”
“Far from misleading anyone,” the Senate President Pro-Tempore says the letter he and other Senate Republicans sent to Smith “encourages thoughtful consideration of a sensitive matter of public law,” while Smith’s response is “inexplicable,” actively discouraging a proper conciliation.
Citing the recent decision by the Sixth Circuit Court of Appeals decision to uphold traditional marriage, Berger says the issue of same-sex marriage is still to be decided by the federal courts. “This truth,” he writes, “must be viewed together with the well-established First Amendment right to religious freedom.”
Berger vows, “My office will continue to do all that it can to ensure that the expansion of rights for some does not infringe on the liberty of others. Common sense and the United States Constitution require nothing less.”
Senator Berger and House Speaker, Thom Tillis, in defense of North Carolina’s marriage amendment have filed notices of appeal with the federal Fourth Circuit Court of Appeals.
Furthermore, Senator Berger has promised that he will run legislation in the next session of the General Assembly to clarify protections for magistrates, register of deeds and their employees who, for reasons of faith, decline to participate in a same-sex marriage ceremony.
Dr. Mark Creech, executive director of the Christian Action League said, “I have always known Senator Berger was a good and reasonable man, but his vigorous defense of religious liberty is characteristic of genuine statesmanship. Conservative Christians across our state are indebted to this man, not simply for his advocacy for magistrates, but for fighting for the religious freedom of all of us. I hope you will join me in praying for him, and standing with him. And let’s not forget to express our appreciation.”
Take Christian Action:
Send a note of thanks to Senator Berger for his valiant defense of religious liberty. You can send your note via email at Phil.Berger@ncleg.net.
Or you can write him at:
Senator Phil Berger
16 W. Jones Street, Room 2008
Raleigh, NC 27601-2808