Plaintiffs challenging Senate Bill 2 (SB2), an anti-LGBTQ law in North Carolina, have filed their plaintiff’s reply brief to the U.S. Fourth Circuit Court of Appeals. Oral arguments before the Fourth Circuit are now scheduled to take place between May 9-11. In September 2016, Judge Max Cogburn dismissed the lawsuit on issues related to standing and plaintiffs immediately filed a notice of appeal to the Fourth Circuit.
The full plaintiff’s reply brief filed on February 10, 2017 to the Fourth Circuit can be downloaded at:
www.southernequality.org/wp-content/uploads/2017/02/Plaintiffs-Reply-Brief-to-4th-Circuit.pdf
The reply brief reads in part: “It is fundamental to our national experiment that ‘the judges in every state shall be bound’ by the Constitution, and that all state legislators and state judicial officers ‘shall be bound by oath or affirmation’ to ‘support the Constitution.’ Under SB2, religious belief supplants the Supremacy and Oath Clauses.”
“We are excited to have a hearing date at the Fourth Circuit Court of Appeals and are hopeful the court will find that LGBT people in North Carolina have the right to challenge SB2 in court,” says Rev. Jasmine Beach-Ferrara, Executive Director of the Campaign for Southern Equality.
SB2 was passed in spring 2015 as part of a wave of so-called “religious exemption bills” that originated in direct response to marriage for same-sex couples becoming legalized. The law allows magistrates to exempt themselves from performing marriage ceremonies and Register of Deeds employees to exempt themselves from issuing marriage licenses to couples, on the basis of their religious beliefs.
The plaintiffs in the lawsuit are: Diane Ansley and Cathy McGaughey, a married couple and taxpayers in McDowell County who were plaintiffs in General Synod of the United Church of Christ v. Reisinger, which struck down Amendment One on October 10, 2014. Carol Ann Person and Thomas Person, a married couple and taxpayers in Moore County who were denied the ability to marry in 1976 after two magistrates in Forsyth County claimed that their religious beliefs against interracial marriage would not permit it. (A subsequent lawsuit resulted in a federal judge ordering that the magistrates in Forsyth County comply with Loving v. Virginia). Kelley Penn and Sonja Goodman, an engaged couple and taxpayers in Swain County.
Another part of brief explains the issue of taxpayer standing: “(SB2) depend(s) entirely upon the legislatively-mandated spending of tax dollars to succeed. Those funds pay to transport magistrates across judicial district lines to perform marriages where other magistrates are unwilling to do so as an article of religious belief; and Section 5 authorized and required the judicial branch to pay the retirement service credits of reinstated magistrates for the period in which they had resigned rather than accept the holding in Bostic. That is, SB2 works only because Defendant-Appellee spends legislatively-mandated tax dollars. Even though a modest sum, this spending is not just incidental to implementing Sections 1(c) and 5 of SB2—it is essential to it. That makes SB2 unconstitutional.”
SB2 sends a clear message to gays and lesbians that they are not full citizens, and denounces the federal courts for finding a fundamental right to marry under the Equal Protection and Due Process Clauses of the U.S. Constitution. SB2’s primary purpose is to endorse and establish the primacy of a specific religious belief about same-sex marriage above the constitutional obligations of magistrates. SB 2 also orders the expenditure of taxpayer funds to bring an oath-abiding magistrate from another county to perform marriages when oath-renouncing magistrates refuse to marry gay and lesbian couples. These expenditures of public funds to accomplish a religious purpose violates the Establishment Clause of the First Amendment.
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