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Greensboro News & Record columnist Susan Ladd does a great job of skewering state Senate President Pro Tem Phil Berger’s ridiculous “religious freedom” for magistrates legislation today in this essay.

“It’s appalling that the first order of business for our state legislature would be to reinstate Jim Crow. Or should we call it James Crow? Jane Crow? Jim Crow 2.0?

Discrimination by any name smells just as sour.

But discrimination is precisely what the bill introduced Wednesday by state Sen. Phil Berger (R-Rockingham) allows. Currently titled the Magistrates Recusal of Civil Ceremonies, the bill falls under the general heading of “religious freedom” laws sweeping the country after the legalization of same-sex marriage in many states.”

She goes on:

“Though this bill is narrower in scope than ‘religious freedom’ laws that have been attempted in other states, it still legislates discrimination and limits the rights of groups that could be targeted by a religious objection….

Because this bill doesn’t specify, however, magistrates presumably would be free to recuse themselves from performing other marriages that violated their religious beliefs. Religion is a very malleable thing, having been used to object to all kinds of practices. But let’s take an obvious case.

A magistrate opposed to interracial marriage simply could cite the passage used by the Virginia circuit court judge in 1959, when he convicted Richard and Mildred Loving of the crime of interracial marriage.”

Here’s the excellent conclusion:

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Commentary

Gay prideThe closed-door meeting to discuss the new “religious freedom” bill has been postponed, according to an email sent out by the North Carolina Values Coalition. The organization claims that they received an “overwhelmingly positive” response to the meeting and have had to reschedule out of concern that the facility could not accommodate the crowd.

Unfortunately, postponement of the meeting will be unlikely to slow down the momentum of the “religious freedom” crusade. This morning, Senate leader Phil Berger introduced a “religious freedom” bill allowing magistrates and registers of deeds to be exempt from performing their duties if it violates their religious beliefs.

The bill attempts to be impartial on its face. It allows magistrates and registers of deeds to recuse themselves from their duties if they are asked to perform an act that goes against their religious beliefs but then also prevents them from performing any of their duties for the following six month period. In other words, they won’t be allowed to pick and choose which marriages to perform. The bill adds that there must be a magistrate available to perform marriages for at least ten hours a week over three business days. While all this may seem fair in theory, the reality is that, in many places in North Carolina, finding a magistrate willing to perform same-sex marriages and a register of deeds willing to sign the marriage license under such circumstances could be difficult. Adding to the burden for couples, will be trying to get in during the small window of time three days a week that these officials will be available. The overall result will be that LGBT couples will have a much harder time getting married if this bill is passed—the exact effect that was intended.

The North Carolina Values Coalition has indicated that they plan to seek much broader anti-LGBT legislation, than this bill. On the other side, Equality NC has also indicated that they fear additional legislation that will provide a broader license to discriminate.

The absurdity of the bill itself was pointed out by State Senator Jeff Jackson, during Equality NC’s press conference held today in anticipation of the bill’s introduction and the legislative briefing originally scheduled for this afternoon. As Jackson rightly observed, “in this nation, we don’t have to pass any government employee’s personal religious test in order to receive government service.” Apparently, Senator Berger missed that lesson in civics.

Commentary

marriage amendmentAccording to news reports, Representative Paul Stam will hold some kind of legislative “briefing” tomorrow on a “religious freedom” bill that would permit magistrates and other state employees to deny same-sex couples marriage licenses if it violates their own religious beliefs.

This is an enormously troubling idea.

From a legal standpoint, permitting state employees to refuse to perform the duties of their job based on their faith opens the door to all sorts of potentially absurd new practices. There are many religions out there with many different beliefs, including some that are contrary to our state laws or policies. Are we now saying that a person’s individual, albeit sincerely-held, beliefs take precedence over the duties of their job? Can an EMT refuse to provide medical treatment to a member of the LGBT community because their lifestyle violates her religious beliefs? If a police officer, whose religion beliefs include the right of a man to discipline his wife, witnesses domestic abuse while on the job, can he choose not to arrest the husband? We’re heading down a very slippery slope with this bill.

But let’s think about this bill itself, which Stam claims is intended to defend religious freedom. The irony of this, of course, Read More

News

The justices of the U.S. Supreme Court agreed today to take on directly the question of whether same-sex marriage bans violate the Constitution.

Here’s the language from the order:

The petitions for writs of certiorari are granted.

14-556             OBERGEFELL, JAMES, ET AL. V. HODGES, RICHARD, ET AL.
14-562             TANCO, VALERIA, ET AL. V. HASLAM, GOV. OF TN, ET AL.
14-571             DeBOER, APRIL, ET AL. V. SNYDER, GOV. OF MI, ET AL.
14-574             BOURKE, GREGORY, ET AL. V. BESHEAR, GOV. OF KY, ET AL.

The cases are consolidated and the petitions for writs of certiorari are granted limited to the following questions: 1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

A total of ninety minutes is allotted for oral argument on Question 1. A total of one hour is allotted for oral argument on Question 2. The parties are limited to filing briefs on the merits and presenting oral argument on the questions presented in their respective petitions. The briefs of petitioners are to be filed on or before 2 p.m., Friday, February 27, 2015. The briefs of respondents are to be filed on or before 2 p.m., Friday, March 27, 2015. The reply briefs are to be filed on or before2 p.m., Friday, April 17, 2015.

The cases come to the court from four states in the Sixth Circuit — Ohio, Tennessee, Michigan and Kentucky —  and follow that circuit’s decision upholding same-sex marriage bans in each of them.

News

marriage amendmentEarlier this week, State Senate President Phil Berger and former House Speaker Thom Tillis filed a petition for review at the U.S. Supreme Court, asking the justices to overturn the October decisions by federal district court judges in North Carolina rejecting the state’s same-sex marriage ban.

The federal court rulings followed the July decision by the 4th U.S. Circuit Court of Appeals in Bostic v. Schaefer, overturning a similar Virginia ban.

Tillis and Berger then intervened in two North Carolina cases for purposes of appeal after state Attorney General Roy Cooper refused to move forward, saying that the courts had now settled the question.

A third district court judge in North Carolina has also rejected the state’s marriage ban, but did not allow the lawmakers to intervene for purposes of appeal. That case, along with the two now before the nation’s highest court, is winding its way through the Fourth Circuit but is not part of the petition for review.

In October, the nation’s highest court refused to take several appeals overturning state marriage bans, likely because at that time all of the underlying decisions reached the same conclusion and no circuit split existed.

Since then, though, the Sixth Circuit has upheld bans in Kentucky, Michigan, Ohio, and Tennessee, creating the necessary split of authority on the issue.

The justices have been considering petitions for review in cases out of each of those states and may decide as early as this Friday which, if any, they will take. If they do hear any of the appeals, argument will likely be in April with a decision expected near the end of the term in late June.

Notably, the justices did refuse on Monday to take a case out of Louisiana which, like the North Carolina cases, had not yet been reviewed by the circuit court of appeals.

As SCOTUSblog’s Lyle Denniston notes:

The Court’s denial of review in the Louisiana same-sex marriage case is not a reliable indicator of the Court’s current interest in the authority of the states to ban same-sex marriage. The couples in the Louisiana case had asked the Court to bypass the U.S. Court of Appeals for the Fifth Circuit, and take on the case without waiting. The Justices’ response probably indicates a desire not to intrude into the review by the Fifth Circuit, which held a hearing on the Louisiana case, and two others, just last Friday. The Court seldom chooses to bypass appeals courts, although it clearly has the authority to do so.

State Rep. Tim Moore, sworn in as the new House Speaker yesterday, will now take the place of Tillis in the petition. Moore has long opposed gay marriage and has said that he and his Republican colleagues “owe it to the voters” to take all steps to uphold the state’s ban.

Recent polling shows, however, that most state residents now favor gay marriage.

The petition, though filed on January 9, was not docketed by the court until Tuesday. Read it in full here.