Challengers of magistrate recusal bill file appeal

By: - November 22, 2016 3:00 pm

LGBT rainbowThe plaintiffs challenging Senate Bill 2, an anti-LGBTQ law that allows magistrates to recuse themselves from performing marriages if they have a religious objection, filed an appeal Tuesday in the U.S. Fourth Circuit of Appeals.

In September, Judge Max Coburn dismissed the lawsuit challenging SB2 on issues related to plaintiffs’ standing in the case. The plaintiffs involve same-sex couples Diane Ansley and Cathy McGaughey of McDowell County; and Kelley Penn and Sonja Goodman of Swain County; and an interracial, different-sex couple, Carol Ann Person and Thomas Person of Forsyth County.

“Senate Bill 2 expressly declares that magistrates’ religious beliefs are superior to their oath of judicial office to uphold and support the federal constitution,” said Luke Largess, a partner at Tin Fulton Walker & Owen and lead counsel in Ansley v. Warren. “And the law spends public money to advance those religious beliefs. That is a straightforward violation of the First Amendment. The Court ruled that we were not challenging Senate Bill 2, but only the incidental spending by the Administrative Office of the Courts. That is clearly not the case.”

SB2 became law early last year after legislators overrode Gov. Pat McCrory’s veto, allowing magistrates to opt out of performing all marriages for a period of six months, if they have a sincerely held religious objection. The recusal is for a minimum of six months and continues until it is rescinded in writing.

Register of Deeds employees can also exempt themselves from issuing marriage licenses to couples for the same reason. The current number of Register of Deeds employees across the state was not immediately available.

The North Carolina Administrative Office of the Courts has received 31 notices of recusals from magistrates since the passage of SB2, according to Communications Director Sharon Gladwell. She said the Judicial Branch has about 670 magistrates statewide.

According to a news release from LGBTQ organization, The Campaign for Southern Equality, for a period of time in McDowell County, all magistrates exempted themselves and public funds were used to bring in magistrates from a neighboring county for short shifts, during which local couples could be married.

“Senate Bill 2’s primary purpose is to endorse and establish the primacy of a specific religious belief about same-sex marriage above the constitutional obligations of magistrates,” the news release states. “Senate Bill 2 also orders the expenditure of taxpayer funds to bring an oath-abiding magistrate from another county to perform marriages when oath-renouncing magistrates refuse to marry gay and lesbian couples. The law also orders the judicial system to pay retirement contributions to magistrates who quit in the wake of Amendment One being declared unconstitutional rather than marry gay and lesbian citizens.”

Plaintiffs contend in their appeal that the overall case raises serious constitutional issues regarding taxpayer standing and that the expenditure of public funds to accomplish a religious purpose violates the Establishment Clause of the First Amendment, the Due Process Clause of the Fourteenth Amendment, and Article VI of the U.S. Constitution.

They ask that the District Court’s dismissal of the case be reversed.

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