North Carolina's Rightward Turn

A bill excusing public officials from performing gay marriages caps a string of legislative victories for conservatives.

Terrence Hall (L) and Christopher DeCaria (R) display their marriage license to the media in Charlotte, North Carolina on October 13, 2014 (Davis Turner / Reuters)

Senator Jesse Helms looked right at the camera and named two of my neighbors as threats to the people of North Carolina.

Their offense: They were gay.

The year was 1984. After two terms as the furthest-right senator in Washington, Helms faced a formidable opponent—North Carolina Governor Jim Hunt. Helms energized his campaign by bitterly fighting the Martin Luther King’s birthday holiday—King was a Communist, he claimed. But he was still behind in the polls. In the candidate debate, Helms dropped his gay bomb. “You’re supported by people liked Joe Herzenberg and Lightning Brown,” he said.

Herzenberg and Brown were the first two out gay political activists I had ever met. Like every Democrat in the state, they were working against Helms and for Hunt, and now they became Helms’s weapon against Hunt. A newspaper friendly to Helms began calling Herzenberg “Queen of the Hop”; it charged that, because Brown was gay, he was “a class H felon in North Carolina.” A few days before the election, its main headline read, JIM HUNT IS SISSY, PRISSY, GIRLISH, AND EFFEMINATE.

Of course other newspapers denounced this crude anti-gay smear—thus ensuring that it was heard by voters from Manteo to Murphy. Helms went on to defeat Hunt by a small but solid margin. In 1990, Helms was reelected again, in part because he warned voters that his Democratic opponent favored “mandatory gay rights.” (“If we have mandatory gay, can I be gay with you?” a friend asked after that. “I’d hate to be assigned to a stranger.”) “ Helms said that homosexuality “is not decent and moral and we are taught biblically what it is—it's an abomination."

It was thus in North Carolina, during the era of AIDS, that I first learned of the political power of organized homophobia—and first saw the bravery of gay-rights activists who stood up to the vilest kind of bullying. In 1987, Herzenberg became the first openly gay elected official in the South. Lightning Brown (his legal name) had been the first openly gay candidate, but never won election. He was active in citizen and consumer movements, and eventually was appointed to a local water and sewer board.

These two men were my friends. I resented Helms’s attacks on them and what they represented. I wrote a column for a newspaper called The North Carolina Independent (now Indy Week). Through my work there I encountered, for the first time, a vibrant and well-organized LGBT community centered in the Triangle area of Raleigh, Durham, and Chapel Hill. Attracted by the relative tolerance of university communities, they had bought homes, formed families, started businesses, and organized politically. Watching them, it first dawned on me that I couldn’t think of any reason—none at all—why these people should not be legally married if they wanted to.

Jesse Helms is dead, but his trick of using hatred to win votes lives on. North Carolina this week is poised to pass Senate Bill 2, the latest effort to create religious loopholes in any right to same-sex marriage the Supreme Court may proclaim this month. The bill is narrower than the religious-freedom acts rejected, or modified, by Indiana, Arkansas, and Louisiana—but it is also meaner. Its aim is to allow state officials to proclaim a policy of refusing to marry same-sex couples, even if the law gives those couples the legal right to be married.

Under S.B. 2, state officials who perform marriages—magistrates, registers of deeds, and deputy registers of deeds—would be permitted to declare “any sincerely held religious objection” to performing some kinds of marriages. The official would then be “recused” from performing any marriages at all for six months. If all the officials in a county “recuse” themselves, then the state must send in a magistrate from out of state to perform weddings; if none can be found, the chief judge of the district court is to do it. (There’s no provision for what happens if the judge refuses; I suspect that by that time, the same-sex couple will have begun to sense a faint note of disapproval in the air.)

Current North Carolina law makes it unlawful for these officials to “willfully omit, neglect or refuse to discharge any of the duties of his office.” S.B. 2 would amend that statute to provide an exception for refusing to perform marriages.

The Republican governor, Pat McCrory, vetoed the bill when it was first passed. “[N]o public official who voluntarily swears to support and defend the Constitution and to discharge all duties of their office should be exempt from upholding that oath,” he said. But the state Senate overrode the veto last week, and the House seems poised to do the same.

There’s been a lot of discussion about same sex marriage and religious freedom. Much of it is crazy—Justice Scalia, who has read the Constitution, worrying aloud that ministers will be required to perform religious weddings; Marco Rubio arguing that same-sex marriage will turn Christianity into “hate speech”—but no one questions that some areas remain to be worked out through open debate.

But honestly, folks, in the year 2015, one thing really ought to be clear under the equal protection clause of the Fourteenth Amendment: If the law gives a person a right to a government service, a government official has no right to refuse to give it. Not because of race; not because of religion; and not because “we don’t like your kind around here.”

Any magistrate or register in North Carolina whose religion requires them to discriminate in performing his or her duties has one and only one honorable choice.

Resign. Find a job your conscience will allow you to perform. Don’t impose your beliefs on the people who pay your salary.

I lived in North Carolina for 11 years. The state by turns delighted me—great universities, fantastic food, haunting traditional music, beautiful rivers, mountains, and beaches—and broke my heart. When Jesse Helms passed from the scene in 2008, others stood ready to take up the banner of division. In national elections, North Carolina is in play, but its state government, since 2008, has turned solidly red.

The members of the new Republican majority repealed the state’s Racial Justice Act. They cut back early voting and imposed harsh voter ID laws; they gerrymandered legislative and congressional districts. They passed crippling regulations on abortion clinics and imposed a 72-hour waiting period for women seeking abortions. They cut taxes for the rich, slashed unemployment compensation, abolished teacher tenure, shifted public-school funding to new charter schools, and refused Medicaid expansion under the Affordable Care Act.

They are moving through state government like a wrecking crew. The multi-millionaire who funded the Republican takeover became the state’s budget director. Republicans gained a majority on the University of North Carolina system board, fired the president, eliminated 46 degree programs, and abolished centers that study poverty, biodiversity, and civic engagement. They packed the Coastal Resources Commission with developers, and banned it by law from studying climate change. Though same-sex marriage was already forbidden by statute, they called a statewide vote that amended the state constitution to ban it also.

Under an order by a federal court, same-sex couples have been marrying in North Carolina since October 2014. Neither Joe nor Lightning lived to see it. Lightning died of AIDS in 1996, and Joe died in 2007. (He resigned from the town council in 1993, when it was reported he had not paid state taxes for 14 years). I doubt the current hijinks would have surprised either man; but they would have made them angry and sad, and they should enrage us all.