By CAL Staff
Christian Action League
September 23, 2016
ASHEVILLE – Two same-sex couples and one interracial couple filed a lawsuit in December of 2015 against the state of North Carolina, claiming that SB 2 – Magistrates Recusal from Civil Ceremonies, was unconstitutional. The law allows magistrates and assistant and deputy registers of deeds to opt-out of the issuance of a same-sex marriage license or the performance of a same-sex civil ceremony, whenever such public servants hold a sincere religious objection.
U.S. District Judge Max Cogburn, however, in a 38 page ruling, dismissed the case on Tuesday, saying the couples lacked standing “by virtue of the fact that their claims are merely generalized grievances with a state law with which they disagree.”
Cogburn further stated in his decision, “Plaintiffs have not alleged, let alone submitted affidavits or other evidence, showing any injury in the form of direct harm that might allow the court to find standing on the grounds other than taxpayer status.”
Plaintiffs’ attorneys, Jake Sussman, Luke Largess and John Gresham, are the same lawyers that brought suit against North Carolina’s marriage protection amendment, which ironically was knocked down as unconstitutional by Judge Cogburn in 2014.
Cogburn’s ruling preceded the U.S. Supreme Court’s decision on same-sex marriage in Obergefell v. Hodges. In that landmark decision in 2015, the High Court declared state constitutional amendments defining marriage as one man and one woman were unconstitutional.
After Cogburn’s same-sex marriage ruling, the North Carolina Administrative Office of the Courts (NCAOC) sent out a memorandum instructing “all magistrates must treat same-sex marriages for which a license has been issued by the Register of Deeds the same way that marriages between a man and a woman are scheduled and conducted.”
The memorandum also warned, “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…”
Authored and championed by Senate President Pro-Tempore, Phil Berger (R-Rockingham), the North Carolina General Assembly passed SB 2 to strike an important balance between same-sex couples who would seek the performance of a civil ceremony, and the religious liberties guaranteed to public servants by both federal and state constitutions. The law also ensured that same-sex couples would not be denied a license or a civil ceremony, and magistrates who sought relief from the performance of gay nuptials for religious reasons must recuse themselves from the performance of all marriages.
Unfortunately, Governor Pat McCrory vetoed SB 2, but the NCGA overrode his veto.
More than 30 magistrates across the state have since invoked the law. Every magistrate in McDowell County operates under its protections. When magistrates are unavailable to same-sex couples in situations like McDowell County, a magistrate is brought in from another County.
Thankful that the law survived its court challenge, Berger said in a statement, “We appreciate the court recognizing the plaintiffs failed to identify even one North Carolinian who was denied the ability to get married under this reasonable law which protects fundamental First Amendment rights.”
“Just because a few federal judges have legitimized what God says is a terrible sin, devout Christians can’t simply just flip a switch and pretend God’s Word is inconsequential. This lawsuit is proof of the clear and present danger of Progressives to turn the First Amendment on its head in pursuit of their ideological agenda. They want to suppress religious freedoms in deference to that agenda,” said Dr. Mark Creech, executive director of the Christian Action League.
“They don’t want the allowance of any religious accommodations. They want to drive religion out of public life, unless it conforms to their assertions about homosexuality. They claim when Christians seek the religious accommodations provided in the First Amendment and laws like SB 2, Christians are really being homophobic bigots who want to discriminate against them. So whether talking about HB 2 or SB 2, there is no middle ground with these folks, no “live and let live. It’s intolerance by the supposed gurus of tolerance,” added Creech.
Creech said he was also very thankful for Senator Berger’s staunch support for religious liberty. “And I am most thankful to God,” he quipped. “When you consider the Plaintiffs were represented in court by the same lawyers that successfully brought suit against our state’s marriage amendment, the Judge presiding was the same one that knocked our marriage amendment down, and the state was represented by the office of Attorney General Roy Cooper who has spoken out against SB 2 many times, you have to conclude that it’s a God-thing SB 2 survived this court challenge.”
The Plaintiffs immediately filed an appeal to the U.S. Fourth Circuit Court of Appeals in Richmond.
Judge Cogburn’s decision on SB 2, incidentally, was handed down the same day the North Carolina Court of Appeals ruled that two former magistrates who resigned prior to the passage of SB 2 had no standing in their case.
Gilbert Breedlove from Swain County and Thomas Holland of Graham County, who profess to be “devout Christians,” filed a lawsuit back in April of 2015, seeking to be reappointed as magistrates and recover back pay and benefits lost. Breedlove and Holland resigned between the issuance of the memo by the North Carolina Administrative Office of the Courts (NCAOC) and SB 2 becoming law.
Charisma News in 2014 did a story about Breedlove’s resignation because of his unwillingness to perform a same-sex marriage. Breedlove, an ordained bivocational minister, “said his Christian faith and adherence to biblical standards left him no choice in the matter.”
The state appeals court upheld a lower court ruling to dismiss the case on the grounds that Breedlove and Holland had no standing to sue the NCAOC. Like the lower court ruling, the appeals court said the state agency had no power to appoint or fire the two former magistrates; only the local judges over them had that authority.