NC officials must follow law on same-sex marriage

Editorial by News and Observer, January 29, 2015.

Phil Berger has better things to do. But the Senate president pro tem, the state’s most powerful lawmaker, continues to focus on suppressing same-sex marriage despite rulings in its constitutional favor by federal appellate courts.

Berger, Republican of Eden, has filed a bill to allow magistrates and register of deeds employees in North Carolina to opt out of any role in same-sex marriages if they object to such unions on personal religious grounds. This is bad law and little more than pandering to the right wing.

It also would quite likely fail a constitutional challenge, which it’s sure to face if it passes the General Assembly.

Public officials are sworn to do their duty, and they don’t get to pick and choose which of those duties to do. What if some magistrates chose not to perform marriages between people of different races because of their personal views? Would that be OK? Could police officers decline to investigate crimes if the victim were gay?

Berger sees no such complications in allowing office-holders to refuse to perform their functions under the law.

“This bill offers a reasonable solution to protect the First Amendment rights of magistrates and register of deeds employees while complying with the marriage law ordered by the courts – so they are not forced to abandon their religious beliefs to save their jobs,” he said.

Berger, a lawyer, ought to know better. In supposedly protecting the First Amendment rights of public employees, he is willing to demolish the other part of the First Amendment: “Congress shall make no law respecting an establishment of religion.” All are entitled to practice their religions, but government officials cannot impose their religious views on the exercise of the law.

Some magistrates who object to gay marriage have quit rather than perform such ceremonies. That’s the proper solution to their dilemma and should be the only one.

The legislature should be concentrating on doing its duty regarding the economy, education and jobs. Instead, Berger is down in the ideological weeds trying to make it OK for government employees to discriminate against people because they are gay.

The issue of whether same-sex marriage is protected under the U.S. Constitution will be settled, probably this year, by the U.S. Supreme Court. The high court has agreed to rule on the issue after conflicting decisions by some lower courts. For now, though, with North Carolina under the jurisdiction of the Fourth U.S. Circuit Court of Appeals, same-sex marriage is permitted. That court ruled that banning same-sex marriage is unconstitutional.

It therefore follows that the government, and those who work for and within the government, can’t discriminate. Yet Berger is doing all sorts of legislative gymnastics here to allow some magistrates to not do their duty.

Brian S. Brown, the president of the National Organization for Marriage, which opposes same-sex marriage, was quoted by the New York Times as saying this week, “The millions of people who voted that marriage is a union of a man and a woman are not simply going to throw their beliefs away. This fight will continue on regardless of which way the Supreme Court rules.”

In this spirit of defiance, Berger is setting up North Carolina to again take the national spotlight for all the wrong reasons. Is this really what he ought to be doing at a time when the state’s trying to land new businesses, preferably high-paying, high-tech businesses?

Responsible business owners look at all sorts of things before they establish themselves in a state, including the quality of its educational system and whether it is welcoming and supportive to all people.