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State Supreme Court denies early review of magistrates’ recusal law challenge

In an order today, the state Supreme Court denied a request by two state magistrates, who resigned from their jobs rather than perform same-sex marriages, to bypass the Court of Appeals and directly review a trial court order dismissing their lawsuit against the Administrative Office of the Courts for reappointment and damages.

The magistrates, Thomas Holland of Graham County and Gerald Breedlove of Swain County, alleged in their complaint that they resigned under duress after the AOC advised in an October 2014 memo that refusal to perform same-sex marriages would constitute “grounds for suspension or removal from office, as well as, potential criminal charges.” They contended that the AOC’s opinion regarding their employment obligations failed to accommodate their religious beliefs in violation of the state constitution and left them no option other than to step down.

(Both resignations predated the legislature’s enactment of the law allowing magistrates to opt-out of their marriage duties based upon a “sincerely held religious belief.” )

In the trial court, the state argued that the magistrates resigned voluntarily and not “under duress,” pointing out that they weren’t ever asked — let alone directed — to perform a same-sex marriage and that no one with the authority to remove them from office ever threatened to do so. In fact, that authority rests with the senior resident superior court judge in the county, not the AOC.

Wake County Presiding Superior Court Judge George B. Rollins, Jr. agreed with the state and, in an order dated September 19, 2015, dismissed the case.

The magistrates’ appeal comes at a time when same-sex couples in the state have challenged the recusal law in federal court, contending that it violates the Establishment Clause of the First Amendment by authorizing the expenditure of public funds to accomplish a religious purpose, and the Equal Protection and Due Process Clauses of the Fourteenth Amendment, by singling out gay and lesbian couples and denying them the fundamental right and dignity of marriage as recognized by the U.S. Supreme Court in June in Obergefell v. Hodges.

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