Plaintiffs challenging SB2, an anti-LGBTQ law in North Carolina, have filed an appeal brief to the U.S. Fourth Circuit Court of Appeals. In September 2016, Judge Max Cogburn dismissed the lawsuit on issues related to standing, a ruling now being appealed to the 4th Circuit Court of Appeals.
The appeal brief is available at:
“Senate Bill 2 expressly declares that magistrates’ religious beliefs are superior to their oath of judicial office to uphold and support the federal constitution. And the law spends public money to advance those religious beliefs. That is a straightforward violation of the First Amendment,” says Luke Largess, a partner at Tin Fulton Walker & Owen and lead counsel in Ansley v. Warren. “The Court ruled that we were not challenging Senate Bill 2, but only the incidental spending by the Administrative Office of the Courts. That is clearly not the case.”
Senate Bill 2 was passed in spring 2015 as part of a wave of so-called “religious freedom 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.
At least 32 magistrates across the state have thus far exempted themselves and Register of Deeds employees in 5 counties have done so, according to September 2015 data reported by the Administrative Office of the Courts and N.C. Association of Registers of Deeds. In McDowell County, for a period of time all magistrates exempted themselves and public funds were being used to bring in magistrates from a neighboring county for short shifts, during which local couples can be married.
Both during a court hearing and in his ruling, Judge Cogburn noted concern about the lack of transparency in the current systems of recusals. Information about which magistrates have recused themselves is not publicly published. Judge Cogburn writes: “A law that allows a state official to opt out of performing some of the duties of the office for sincerely held religious beliefs, while keeping it a secret that the official opted out, is fraught with potential for harm that could be of constitutional magnitude.”
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 who intend to marry this fall.
Senate Bill 2’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. Senate Bill 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. The law also orders the judicial system to pay retirement contributions to magistrates who quit in the wake of Amendment One being declared unconstitutional rather than marry gay and lesbian citizens. These expenditures of public funds to accomplish a religious purpose violates the Establishment Clause of the First Amendment. Senate Bill 2 also 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.
The Campaign for Southern Equality and Equality NC are coordinating a public education campaign for this case.