Appeals Court Rejects Challenge to NC Law Allowing Magistrates to Opt Out of Officiating ‘Gay Weddings’

Photo Credit: George Hodan

RICHMOND, Va. — A federal appeals court has rejected a challenge to a North Carolina law allowing magistrates to opt out of officiating same-sex “weddings” after agreeing with a lower court that the plaintiffs in the case lacked standing.

“The outcome here is in no way a comment on same-sex marriage as a matter of social policy. The case before us is far more technical, whether plaintiffs, simply by virtue of their status as state taxpayers, have alleged a personal, particularized injury for the purposes of standing,” Judge J. Harvie Wilkinson, nominated to the bench by then-President Ronald Reagan, wrote on behalf of the three-judge panel.

He said that the complainants had proven no personal harm because they have either already “married” their partner or are about to do so without any claim of obstruction.

“Plaintiffs concede that the state has not impeded or restricted their opportunity to get married,” Wilkinson wrote. “One same-sex couple married in 2014, another same-sex couple is engaged to be married, and the last pair of plaintiffs, an interracial couple, married in 1976. … Because plaintiffs’ claim does not fall within the narrow exception to the general bar against taxpayer standing, their suit must be dismissed.”

As previously reported, S.B. 2 was introduced in 2015 by Sen. Phil Berger, R-Rockingham, to allow magistrates to recuse themselves from officiating over same-sex services, as well as to permit register of deeds workers to opt out of issuing licenses due to religious objections.

The bill came with one condition: that the individual remove themselves from the marriage business altogether.

“Every magistrate has the right to recuse from performing all lawful marriages … based upon any sincerely held religious objection,” it read in part. “Such recusal shall be upon notice to the chief district court judge and is in effect for at least six months from the time delivered to the chief district court judge.”

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Then-Gov. Pat McCrory vetoed the legislation after being urged by homosexual advocacy groups to do so, but his veto was subsequently overruled by a majority vote.

While reports stated that no one had been denied a license since the law was passed, two homosexuals and their partners filed suit against the legislation in December 2015. An interracial couple sued as well.

“Senate Bill 2 expressly declares that magistrates religious beliefs are superior to their oath of judicial office,” attorney Luke Largess from the law firm Tin, Fulton, Walker and Owen argued. “The law spends public money to advance those religious beliefs. That is a straightforward violation of the First Amendment.”

Last September, U.S. District Judge Max Coburn, nominated to the bench by then-President Barack Obama, ruled that while “there exists the potential that a citizen could suffer real or emotional harm as a result of S.B. 2,” the plaintiffs in the case lacked standing, as they could not prove that they had personally been harmed by the law.

“As plaintiffs have made no allegations of an ‘injury in fact’ that might otherwise allow them to assert standing in this case, plaintiffs have failed to meet their burden of showing they have standing to bring Due Process and Equal Protection claims,” he wrote. “Accordingly, because Plaintiffs lack standing to bring their Fourteenth Amendment challenges, the court lacks subject matter jurisdiction over them and this action must be dismissed.”

The plaintiffs appealed to the Fourth Circuit Court of Appeals in Richmond, Virginia, which upheld Coburn’s ruling on Thursday.

“[T]he plaintiffs, all of whom are either married or engaged, do not claim that the state has impeded their right to get married. Instead, they challenge the religious exemption as taxpayers who object to the alleged spending of public funds in aid of religion,” the panel noted. “In light of the Supreme Court’s admonitions on the narrow scope of taxpayer standing, we affirm the judgment of the district court that plaintiffs lack standing to press this claim.”

Pro-family groups cheered the outcome of the case.

“We celebrate this victory for North Carolina magistrates who have the constitutional right to follow their conscience and rights to free exercise without fear of punishment,” said Mat Staver, founder and chairman of Liberty Counsel, in a statement. “The LGBT agenda seeks to steamroll over the conscience of everyone, including those who serve in the court system who believe in natural marriage.”

Liberty Counsel had represented Magistrate Brenda Bumgarner in an amicus brief filed in support of the law.


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