Validity of opt-out marriage license law debated in North Carolina

The N.C. General Assembly passed a law in June allowing magistrates to opt out of performing civil marriages that require them to go against their religious beliefs — but law experts say it could be irrelevant.

Retired N.C. Supreme Court Justice Robert Orr, who now teaches law at UNC, said that state statutes don’t actually require magistrates to perform marriages as part of their duties.

“Frankly, I just think it’s the political battle between those who have supported gay marriage versus those who have resisted it and supported traditional marriage as the only viable solution,” he said. “It’s not good law, it’s just politics.”

Orr said a more effective compromise would be to allow all notary publics — who are state-appointed impartial witnesses —to perform marriage ceremonies if they want to, allowing more people to officiate weddings.

As the law currently stands, gay couples in rural areas where there are fewer magistrates are at risk of waiting an inordinate amount of time for a judge to do it instead, said UNC law school professor Barbara Fedders in an email.

The (Raleigh) News & Observer reported last month that 14 of the 672 magistrates in the state have used the law, opting out of performing any marriages for six months.

Supporters maintain the purpose of the law is to protect their First Amendment right to religious expression.

“I don’t think really any law can trump the First Amendment and in the First Amendment a person is free to express their religious beliefs, and that includes all parts of their lives,” said Frank Pray, chairman of the UNC College Republicans.

But the law strikes a chord with civil rights advocates who say it legalizes discrimination — such as Reverend Terence Leathers of Mount Vernon Christian Church in Clayton.

“I always tell (my congregation) — and I tell everybody — that I am on a journey as it relates to understanding the LGBTQ community,” he said. “I may not agree with everything, but I’m further along now than I was a few years ago because I understand that you may have disagreements about the lifestyle, but ultimately they are citizens.”

The N.C. American Civil Liberties Union has been at the forefront of the campaign against the magistrate recusal law. ACLU spokesman Mike Meno said they are willing to mount a case to overturn the law if couples who have been denied a marriage license because of the law come forward. None have as of yet.

But Orr said the most effective way to challenge the law might not be taking it directly to court.

“I’d say spend your money expanding and modifying the law as to who performs marriage ceremonies,” he said. “That’s where I would focus my efforts, not on spending a lot of money on attorney fees challenging a law that frankly didn’t seem to me that even needed to be passed.”

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