Senate Leader Phil Berger and a majority of the Senate GOP caucus on Friday sent a letter to the director of the N.C. Administrative Office of the Courts asking his office revise its recent memo spelling out that magistrates must treat same- sex marriages for which a marriage license has been issued the same way that marriages between a man and a woman are treated.
The AOC’s October 14th memo made it clear magistrates could be suspended or fined for refusing to perform same-sex marriages. Here’s an excerpt from that memorandum:
The GOP leadership now wants court officials advised that they can side-step the federal court rulings based on religious objections.
Berger has also pledged to introduce next session a bill that would let officials refuse to marry gay couples.
Here’s the body of the letter sent Friday by Senate President Berger and 27 other Republican state senators:
Dear Judge Smith:
This letter responds to the above-referenced memorandum from your office purporting to guide courthouse officials across the State regarding the implementation of orders from federal judges striking down North Carolina’s Marriage Amendment. The memorandum—at best incomplete and at worst misleading—has caused unnecessary confusion and resulted in possible violations of the civil rights of public employees.
First and foremost, the memorandum ignores federal and state protections afforded to employees who, for reasons of religious faith, cannot participate in the recently court-sanctioned same-sex marriage ceremonies. Failure to acknowledge the freedom of religious exercise afforded to all North Carolinians by the First Amendment to the United States Constitution and Article I, section 13 of the North Carolina Constitution—and guaranteed in the workplace by Title VII of the Civil Rights Act of 1964 and the Government Employee Rights Act of 1991—is a serious oversight that has grave repercussions for our State and the public officials being told to follow the advice provided in the memorandum.
The memorandum is equally silent on reasonable, existing solutions available to courthouse officials facing these challenges. North Carolina law affords flexibility to chief district judges, registers of deeds and clerks of court to reconcile the duty to follow the law while ensuring that no courthouse officials or employees are forced to compromise on matters of faith to save their jobs. Ironically, in at least two counties, reasonable accommodations were reached among magistrates and registers of deeds using this flexibility. There is no reason similar accommodations cannot be reached statewide.
The memorandum’s material omissions have consequences. Assertions amounting to threats about job loss and criminal prosecution without acknowledgment of recognized and existing workplace protections appear to have misled some supervisors to believe that the law will not tolerate the actions of reasonable men and women. Communities have been divided. We understand that at least two magistrates in Rockingham and Swain Counties and possibly more magistrates elsewhere in the State have resigned, citing their religious beliefs, to avoid being fired. Still worse, the legal advice the memorandum offers likely exposes North Carolina taxpayers to federal lawsuits by employees whose religious freedom has been compromised.
The appeal of decisions striking down the Marriage Amendment is a separate matter. Unless and until those appeals succeed, the newly-enforced law must be followed. To this end, we remain optimistic that given the proper tools, North Carolina’s courthouse officials can and will resolve these matters thoughtfully and respectfully, implementing the requirements of the recent federal court decisions while accommodating the religious beliefs of those court officials and employees voicing religious objections.
Every part of the United States Constitution must be read together if our freedoms and institutions are to be meaningfully recognized and liberty is to prevail. We encourage you to revise the memorandum to include a comprehensive and correct statement of federal and state law on the doctrine of reasonable accommodation and management flexibility. Such a statement would be entirely consistent with our duty to follow the law. Our belief is that reasonable people across the State will ensure that events never again reach the point where courthouse officials are asked to sacrifice their religious convictions to keep their jobs.
Senator Berger’s letter was co-signed by: Sen. Tom Apodaca, Sen. Austin Allran, Sen. Chad Barefoot, Sen. Stan Bingham, Sen. Andrew Brock,Sen. Harry Brown,Sen. Bill Cook,Sen. David Curtis, Sen. Warren Daniel, Sen. Jim Davis, Sen. Rick Gunn, Sen. Kathy Harrington,Sen. Ralph Hise, Sen. Neal Hunt, Sen. Brent Jackson,Sen. Joyce Krawiec, Sen. Wesley Meredith, Sen. Louis Pate, Sen. Ron Rabin, Sen. Shirley Randleman, Sen. Bob Rucho, Sen. Norm Sanderson, Sen. Dan Soucek, Sen. Jeff Tarte, Sen. Jerry Tillman, Sen. Tommy Tucker and Sen. Trudy Wade.