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to Section One | to Arts & Entertainment
posted Friday, June 30, 2017 - Volume 45 Issue 26
4th Circuit rejects challenge to North Carolina same-sex opt-out law
Section One
ALL STORIES
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4th Circuit rejects challenge to North Carolina same-sex opt-out law

by Mike Andrew - SGN Staff Writer

A three-judge panel of the 4th Circuit Court of Appeals has rejected a challenge to North Carolina's law allowing magistrates to opt out of performing same-sex marriages.

In a unanimous decision on June 28, the judges said the three couples who brought the lawsuit lacked standing to sue.

Two of the plaintiff couples are Lesbians. The other plaintiffs are a husband and wife who won a 1978 court ruling against North Carolina magistrates who refused to perform their interracial marriage because of religious beliefs.

The appeals court rejected their suit because two of the couples are already married and one has obtained a marriage license. They could not show they had been harmed by SB2, the North Carolina law that allows state officials to opt out of performing same-sex marriages on religious grounds.

In their court filings, the couples said they were suing as North Carolina taxpayers, whose taxes went to pay the salaries of state magistrates who refused to perform their proper functions.

Two of the plaintiff couples are from McDowell County, where all magistrates recused themselves from same-sex marriages after SB2 was passed.

According to the law, the state must offer alternative officials to marry same-sex couples if magistrates opt out, and in McDowell County the state paid a magistrate from nearby Rutherford County to come several days a week to marry McDowell County couples. Only a fraction of magistrates statewide have recused themselves.

While the law was passed in response to the US Supreme Court's Obergefell decision legalizing same-sex marriages, the 4th Circuit panel said that same-sex marriage was not the issue.

'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 (federal court) standing,' Judge J. Harvie Wilkinson wrote in the 3-0 ruling.

Lawyers for the plaintiffs said they are considering whether seek a hearing before the full 4th Circuit or take their challenge of the law to the US Supreme Court.

'We are reviewing the court's opinion published this morning and will make a decision about whether to pursue any further appeals, either to the full 4th Circuit or to the Supreme Court,' said Luke Largess, a partner at Tin Fulton Walker & Owen and lead counsel in the case.

'The fundamental question here is when a legislature acts to target a specific community, which is clearly what happened with SB2, there has to be a way to challenge a law that's based on animus and bias. And SB2 absolutely fits those criteria,' said Campaign for Southern Equality Executive Director Rev. Jasmine Beach-Ferrara.

'SB2 is unjust and distorts the true meaning of religious freedom,' she added. '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.'

Utah and Mississippi also have laws allowing public officials to recuse themselves from performing marriages because of religious beliefs, according to a tally by the National Conference of State Legislatures.

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