Same-sex marriage is now legal in North Carolina. It was, of course, bound to be so eventually. Even Thom Tillis, Speaker of the House of Representatives in North Carolina and current GOP nominee for Kay Hagan’s U.S. Senate seat, said so back in 2012, when he helped push through a constitutional amendment banning same-sex marriage in the state.
Tillis thought it would take about 20 years, so he along with numerous others on both sides of the fence were somewhat caught off guard when on October 10 a federal judge in North Carolina struck down the ban.
Same-sex weddings began almost immediately, and have continued since.
Not seamlessly, of course. Although the LGBTQIA community and their allies have roundly embraced the October 10 ruling, those who originally backed the amendment have been scrambling for remedies. Except for a few diehards, it seems that very few actually think that there is any real chance of going back on legalization. That battle is, thankfully and for the most part, over and done with.
The strategy has fallen instead to “protecting” those whose religious opposition to same-sex marriage may conflict with the law. That includes public employees whose regular duties include issuing marriage licenses and officiating marriages, such county registers of deeds, magistrates, and their employees. As The Charlotte Observer reported, the conservative North Carolina Values Coalition, for instance, sent an email the weekend before last to the state’s registers of deeds, stating that they can refuse to issue marriage licenses to same-sex couples based on their “First Amendment right not to violate their religious beliefs.” Tami Fitzgerald, director of the North Carolina Values Coalition, likewise told the Raleigh-based CBS affiliate WRAL, “You shouldn’t have to sacrifice your religious beliefs just to keep your job. That’s just wrong, and it violates our first freedom—the right to freely exercise your religious beliefs.”
In a rear guard response to the potential conflict, which has seen the resignation of at least six magistrates, North Carolina Senate President Pro Tem Phil Berger stated last week his intent to introduce a bill that would protect the jobs of public employees who refuse to issue marriage licenses or officiate same-sex weddings out of religious conviction. Although the details of the bill aren’t yet hammered down, Berger has stated, “The court’s expansion of the freedoms of some should not violate the well-recognized constitutional rights of others. Complying with the new marriage law imposed by the courts should not require our state employees to compromise their core religious beliefs and First Amendment rights in order to protect their livelihoods.”
Berger’s intended legislation has already won the hearts and minds of many opponents of same-sex marriage. Expressing her solidarity, Tami Fitzgerald has stated, “Government was never intended to be hostile to religion, and we agree with Senator Berger that a legislative fix is in order.”
Whatever Berger puts forward, though, is going to face a well-deserved fight over its constitutionality, which same-sex marriage advocates and the state ACLU—who are now, it’s worth emphasizing, on the side of the law—have already questioned in advance.
As well it should be, since there’s really nothing to “protect” because “religious freedom” is not really at issue, here. “Religious freedom” in relation to same-sex marriage has been covered at length here at RD, but I would like to stress the point that being required by an employer to perform essential duties that may infringe upon one’s individual religious beliefs, whether those beliefs are sincere or not, is not necessarily a violation of one’s First Amendment rights. And it certainly doesn’t necessarily amount to government hostility toward religion.
“Necessarily” is the key word here, of course, but this is especially the case when your employer is the state and your job requires on oath—an oath that is, it’s important to note, freely taken—that you uphold the law. The magistrate’s oath in North Carolina, for instance, requires him or her to swear to “faithfully and impartially discharge all the duties” of the office; registers of deeds must swear likewise.
Those “duties” now include issuing marriage licenses to same-sex couples and officiating same-sex weddings. Some have argued that that wasn’t part of the deal when they took the oath), but that’s really beside the point: the oath is to “duties” in the plural and those can and do change as the law does. Moreover, that magistrates, registers of deeds, and their employees now have to perform functions with which they may personally disagree has little to do with their “freedoms” as “citizens of the state,” as one magistrate who quit her job has argued. In taking an oath to the state one has already freely agreed to accept the state’s authority in regard to duties explicitly required by the office over matters of personal belief.
As ACLU legal director Chris Brook has said, “State officials don’t get to pick and choose which laws they follow.” “Normal” citizens and, we should add, churches, are under no such obligation—because they haven’t taken an oath.
All of this is not to make a more general philosophical or political argument about the authority of the state. I’m as suspicious of the next person about state authority and government overreach. It’s just to say that you can’t always have it both ways, especially as a public employee, and the fact that you can’t doesn’t automatically entail a violation of rights.
In the end, those registrars of deeds, magistrates, and their employees in North Carolina whose religious beliefs prevent them from performing their required duties can always go find another job. That may sound harsh, but unfortunately, the constitution doesn’t grant the right to public employment—or employment at all for that matter. Perhaps it should, though those who scream the loudest about “religious rights” when it comes to same-sex marriage are often also the first to dismiss any calls for strengthening labor laws—we wouldn’t want to violate the rights of employers, would we?
