Better Governing Now » NC Case May Roil U.S. Religion Debate


NC Case May Roil U.S. Religion Debate

    Publisher's note: This post, by Elliot Engstrom, was originally published in the Issues, Justice & Public Safety, Life & Family Issues section of Civitas's online edition.

    In recent months, headlines on religious liberty across the nation have referred almost exclusively to the Religious Freedom Restoration Act (RFRA) — both the federal version passed in 1993 and various state versions, or "mini" RFRAs, that have been passed since 1997. These laws, whether enacted or merely proposed, have resulted in a boisterous nationwide debate over the role of religious liberty in our constitutional system. RFRA is in many ways to free exercise what DC v. Heller was to the right to bear arms.

    Meanwhile, a lawsuit quietly filed in Raleigh earlier this month has the potential to open up the religious liberty debate as much, if not more so, than RFRA. The facts underlying the case date back to July of 2014, and bring into question many of the most fundamental issues underlying the very nature of an individual's religious freedom, known as "free exercise," in our nation and state.

    On July 28, 2014, the United States Fourth Circuit Court of Appeals held that Virginia's marriage laws and constitution were unconstitutional under the Fourteenth Amendment "to the extent that they prevent same-sex couples from marrying and prohibit Virginia from recognizing same-sex couples' lawful out-of-state marriages." Three months later the United States Supreme Court declined to review the decision. This led the Fourth Circuit to issue a mandate in the Virginia case on October 6. This mandate required all of the states in the Fourth Circuit, including North Carolina, to conform to the July 28 decision.

    North Carolina's federal district courts had paused proceedings in several cases while awaiting guidance on the Fourth Circuit's Virginia decision. Within about a week of the Fourth Circuit's mandate, two federal judges in North Carolina issued orders declaring that North Carolina's marriage laws and constitution violated the United States Constitution to the extent that they precluded the recognition of same-sex marriage in North Carolina.

    Following these orders by North Carolina's federal courts, John Smith, the director of the North Carolina Administrative Office of the Courts (NCAOC), issued two memoranda as guidance for North Carolina state court judges in order to ensure compliance with the recent developments in federal law. The first, an "Internal Guidance Memo" issued on October 13, stated that North Carolina magistrates were authorized to immediately begin conducting same-sex marriages.

    The second memo, issued on October 14, stated that a magistrate could not refuse to perform a same-sex marriage for any reason, even if doing so violated the magistrate's sincerely held religious belief. This memo further stated that if a magistrate refused to perform a same-sex marriage, he or she could face suspension, removal from office, and even criminal prosecution.

    As a result of this second memorandum, Gilbert Breedlove and Thomas Holland, magistrates in Swain and Graham Counties, respectively, resigned. On April 13, 2015, local attorney Ellis Boyle filed suit on behalf of the two men in Wake County Superior Court, alleging that they were forced to resign under duress, that this forced resignation was a violation of both men's religious freedoms, and that both men should be reinstated with back pay. The NCAOC and Smith were named as defendants in the suit. The claims are based on the North Carolina Constitution, specifically Article I, Sections 13 and 19, which address religious liberty and equal protection under the law, respectively.

    The plaintiffs are not asking the court to prohibit same-sex couples from being married or to declare that same-sex marriage is illegal. Rather, they are asking for a reasonable accommodation to prevent them from having to choose between keeping their jobs and violating their sincerely held religious beliefs.

    If the plaintiffs succeed, they would be allowed to keep their jobs while also practicing their religion. Boyle is expected to argue that this would have no detrimental or discriminatory impact on a same-sex couple that seeks assistance from a magistrate with a marriage ceremony. Rather, this would simply mean that neither of these two particular magistrates would perform such a marriage ceremony. Under the law as currently stated, a same-sex couple is entitled to be married in North Carolina. However, that same-sex couple is not necessarily entitled to have either of these two particular magistrates perform the marriage ceremony. The argument goes that so long as these magistrates do not perform any marriage ceremonies for any couples, there is no unequal treatment.

    If the NCAOC prevails, the court will have to declare that these magistrates' duty to marry same-sex couples trumps their constitutional right to exercise their religion freely. They will be faced with the choice of participating in same-sex marriage ceremonies or permanently foregoing employment as magistrates. The lawsuit aims for an accommodation that allows these men to both keep their jobs and exercise their religions, while same-sex couples continue to get married by other magistrates.

    Either result could have broad implications for North Carolinians, as the case implicates both a same-sex couples' right to be married and a state employee's right to practice his or her religion freely. While the suit does not challenge the legality of same-sex marriage, it would be difficult for a court to reach any decision without, at least to some extent, commenting on which of these rights prevails when they come into conflict.

    This case is certainly capable of grabbing national headlines. For that reason, Americans nationwide will likely be joining North Carolinians in following and debating the merits of the lawsuit as it moves forward.

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