Updated: S2 passed the full Senate Wednesday morning in a 32-16 vote. Republican Sens. Jeff Tarte and John Alexander of Raleigh voted against the bill. It will go to the House.
Members of the state Senate Judiciary II passed a bill
Tuesday which allows court magistrates to opt out of performing marriages by stating a religious objection.
The bill’s co-sponsor, Republican Sen. E.S. “Buck” Newton acknowledged that Senate Bill 2 i
s a response to federal court decisions to allow marriage between same-sex couples, though he denies the bill discriminates against LGBT people.
“Our society has been thrown a curve ball by the decision of some judges, so now it falls to us to figure out how we’re going to accommodate peoples’ sincere religious beliefs and religious freedom,” Newton told the committee.
The bill provides that magistrates have the right to recuse themselves from performing all lawful marriages “based on any sincerely held religious objection,” and that registers of deeds have the right to recuse themselves from issuing all marriage licenses. The recusals would last for a minimum of six months and would continue until the public official rescinded their decision in writing.
Republican Senator Bill Cook called the bill "a much needed remedy for a sad situation."
Democratic Senators, who opposed the bill, questioned it on grounds of constitutionality. They also raised questions about the recusal process, the extra burden placed on magistrates who continue working, wasted taxpayer money and whether, under the bill, magistrates would be able to opt out of marrying couples because they are inter-faith or inter-racial.
“I’m worried about in-the-moment discrimination,” said Sen. Angela Bryant, citing scenarios where a magistrate could potentially use the law to opt of marrying a same-sex couple as soon as they walked into the magistrate’s office.
Newton said that the bill wasn’t about discriminating against same-sex couples but about public officials being bullied into marrying same-sex couples “regardless of their beliefs,” under the threat of prosecution. He said on the spot discrimination “wouldn’t be an issue.”
Sen. Erica Smith-Ingram drew a parallel between gay and lesbian couples gaining the right to marry and black people gaining the right to vote. “You’re denying them equal access,” Smith-Ingram said. “They’ve been given a constitutional right to marriage. When (African Americans) were given a constitutional right to vote, there were measures put in place to make it difficult.”
Sens. Mike Woodard and Jeff Jackson continued the debate about whether the bill was constitutional.
“The bill doesn’t specify that a sincerely held religious objection has to be on the basis of performing a same sex marriage, so could the objection be on the basis of performing an interracial marriage, or a marriage of people of two different faiths,” Jackson asked. Legal staff acknowledged the bill is vague about the definition of a sincerely held religious objection.
Woodard asked to see the case laws Newton and his staff looked at while crafting the bill. “It would seem to me this would end the practice of public servants having a duty of having to serve everyone impartially,” he said.
But Newton maintained the bill is constitutional, citing employees’ First Amendment protections, and he said that several outside groups “who don’t agree with me that marriage is between a man and a woman” acknowledge the bill is constitutional.
The American Civil Liberties Union, which is concerned with protecting religious freedom as well as the rights of LGBT people, is not one such group that concedes that the bill is constitutional, according to ACLU-NC policy director Sarah Preston. She said ACLU-NC has “serious concerns” about the bill.
“We don’t think it is right for the General Assembly to allow government employees to opt out of performing job duties that they have sworn an oath to perform,” Preston said. “It is clear this bill was designed to deny services to gay and lesbian couples.”
A representative from the North Carolina Association of the Registers of Deeds said the group took no position on the bill but noted that recusals could cause “real problems” for small counties who employ only a few magistrates or registers of deeds.
The Committee passed the bill on a voice vote.