Should magistrates and registers of deeds be allowed to recuse themselves from performing marriage ceremonies if they personally object to the union?
That’s the question federal judges will be considering – sort of – in Richmond, Virginia, this week.
On Wednesday, the US 4th Circuit Court of Appeals will hear arguments in a lawsuit challenging North Carolina’s “magistrate recusal” law, SB2. SB2 is the law – passed shortly after a federal judge struck down North Carolina’s ban on same-sex marriage – that allows magistrates and registers of deeds to recuse themselves from performing marriage ceremonies if they have a religious objection. (The bill is clearly designed for those who object to same-sex marriage, but it’s worded broadly to enable magistrates to recuse themselves if they object to any marriage.) If a magistrate does recuse herself, another magistrate has to step in and perform the ceremony – even if that means bringing in a magistrate from a different county. (That’s what happened in 2015, when all four magistrates in McDowell County recused themselves.)
Ansley v. Warren is the case. (Read the initial brief here.) Three couples are suing the state – including one interracial couple, Carol Ann and Thomas Person, who were denied the ability to get married back in 1976 when officials in Forsyth County refused to perform the ceremony on religious grounds. (One official “read to them from the Old Testament to justify his refusal,” according to the Ansley brief.) The Persons weren’t allowed to get married until a federal judge finally intervened – two years later.
Meghann Burke is one of the attorneys representing the plaintiffs; she’s an attorney with the Asheville-based firm Brazil & Burke and the legal team leader for the Campaign for Southern Equality. Burke spoke this week with WCHL’s Aaron Keck.
Technically, judges won’t be considering the lawsuit itself this week; they’re just reviewing a judge’s earlier ruling on standing. Attorneys filed the suit in March of 2016 – claiming the law violates the Constitution’s Establishment Clause, which forbids the government from endorsing a particular religion – but District Court Judge Max Cogburn ruled that the plaintiffs lacked standing to sue. That’s the crux of this week’s hearing: the plaintiffs are asking the Fourth Circuit to overrule Cogburn and find that they have standing. (“Standing” is a legal term: in order to challenge a law, you have to demonstrate that you’re directly affected by it. Cogburn ruled that the plaintiffs lack standing because the law hasn’t prevented them – or anyone – from actually getting married; but the plaintiffs say they’re affected by a policy that’s clearly designed to denigrate same-sex unions. In addition, they say all North Carolinians are affected whenever tax dollars have to be spent to truck magistrates to neighboring counties, as in McDowell County.)
It’ll be a while before the case is resolved: Burke says she doesn’t expect the Fourth Circuit to issue a ruling for a couple months.