4th Circuit judges reaffirm marriage recusal law

"Religious freedom" law allows discrimination against same sex couples

In a ruling against marriage equality in North Carolina, 4th Circuit Court of Appeals Judges James Harvie Wilkinson III, Barbara Keenan and Stephanie Thacker dismissed a lawsuit against State Bill 2 (SB 2) which allows magistrates to recuse themselves from performing marriages inconsistent with their “sincerely held religious objection.”

SB 2 was passed in 2015, shortly after the court ruled against Amendment One, North Carolina’s ban on same-sex marriage. Notoriously anti-LGBTQ Gov. Pat McCrory vetoed the law, but his veto was overridden by the state legislature. The plaintiffs filed suit against SB 2 in March 2016. The case was dismissed the following Sept. and plaintiffs appealed the decision in Dec.

Now, Wilkinson wrote an 18-page ruling explaining the case’s second dismissal as a matter of standing.

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“The case before us is far more technical,” Wilkinson wrote, saying that the court’s decision concerns “whether plaintiffs, simply by virtue of their status as state taxpayers, have alleged a personal, particularized injury.”

The plaintiffs include three couples from North Carolina. Two are lesbian couples, one married in 2014 and another currently engaged to be married. The third couple, though heterosexual, were denied a marriage license on similar grounds in 1976 because they are interracial. The judges claim that none of them have been prevented marriage by SB 2.

This renders the plaintiffs “simply… taxpayers,” according to Wilkinson. The legal team supporting the plaintiffs — including Charlotte’s own firm Tin Fulton Walker & Owen, and the Campaign for Southern Equality — pointed out that state money was spent to import magistrates to McDowell County after every single magistrate recused themselves. After filing such a refusal, a magistrate may not perform any marriages for six months’ time.

“There has to be a way to challenge a law that’s based on animus and bias,” Campaign for Southern Equality Executive Director Jasmine Beach-Ferrara told WRAL. The plaintiffs’ lead counsel, Luke Largess of Tin Fulton Walker & Owen, agrees.

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“Senate Bill 2 expressly declares that their religious beliefs are superior to their oath of judicial office to uphold and support the federal constitution,” Largess said. “The law spends public money to advance those religious beliefs. That is a straightforward violation of the First Amendment.”

“We don’t get to select whom we want to help. It’s public service, not selective service,” said then- Sen. Josh Stein upon the law’s passage in 2015. “If a public school teacher has a sincerely held religious belief against having a child out of wedlock, should they be able to refuse to interact with a single mom?”

Beach-Ferrara had further comment as the 4th Circuit Court dismissed the suit against SB 2.

“SB2 is unjust and distorts the true meaning of religious freedom,” she said. “From day one, it’s been clear that SB2 is about one thing – finding a new way to discriminate against same-sex couples and privileging one set of religious beliefs over others. We will keep standing up to discrimination until LGBTQ North Carolinians are equal in every sphere of life.”

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