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Can NC's Magistrates Opt-Out of Performing Same-Sex Marriages?

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By Christopher Coble, Esq. on June 04, 2015 7:01 AM

With this oath you promise to uphold the Constitution and laws of this State ... except the ones you don't like.

North Carolina is trying to pass a bill that would allow public officials to opt out of having to perform gay marriages. Governor Pat McCrory already vetoed the bill, but the Republican led state Senate overrode McCrory's veto with a 32-16 vote.

The Bill

Since October 10, 2014, same-sex marriages have been legal in North Carolina. However, the fight between religious beliefs and fair treatment rages on.

When same-sex marriages were authorized last year, magistrates that refused to officiate same-sex marriages could be punished, fired, or face potential criminal charges. In objection, several magistrates resigned.

In response to those resignations, the state's Senate and House passed Senate Bill 2 (SB 2) which would allow magistrates and other officials to refuse to perform same-sex marriages because of their personal "sincerely held religious objection." Officials must opt-out in writing. Once they've opted out, the officials cannot perform any marriages, gay or heterosexual for six months.

Proponents of the bill claim that they protect government employees' rights to exercise their religion.

However, opponents of the bill fear that the bill will make loopholes for discrimination and unfair treatment of gay couples. Additionally, the bill could conceivably allow magistrates to deny marriage licenses to any couple for any reason as long as the magistrates claim a "sincerely held religious objection." For example, the ACLU reports that, in 1977, two magistrates refused to perform marriages to interracial couples because of their religious beliefs.

Exemptions For Religious Groups

Some other states have also introduced bills similar to SB 2. Utah is the only other state that has passed such exemption for government officials to opt out. However, most states that have legalized same-sex marriage have exempted religious groups and clergy from having to perform same-sex marriages.

SB 2 now goes back to the state's House of Representatives for another vote to override the veto.

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