Why North Carolina Judges Can Still Refuse to Perform Same-Sex Marriages

Decisions in dueling lawsuits suggest the religious exemption law will be hard to overturn in the courts.

A gay couple kiss after getting married in Charlotte, North Carolina, in 2014.
A gay couple kiss after getting married in Charlotte, North Carolina, in 2014. (Davis Turner / Reuters )

North Carolina is one of the only places in the United States where judges can refuse to perform same-sex wedding ceremonies. If magistrates have a religious objection to same-sex marriage, state law says, they can tag themselves out of issuing any marriage licenses, for either gay or straight couples, for at least six months. In the past year, various groups have sued the state over religious accommodations for North Carolina judges. But as two decisions this week show, they haven’t been very successful so far.

Before North Carolina passed its exemption law, two judges, Gilbert Breedlove and Thomas Holland, sued a state administrative office for telling them that they had to perform same-sex marriages. They had asked for religious accommodation, but officials refused to give it, so they resigned from their respective posts. Although the legislature later addressed this issue by specifically putting a religious exemption for judges in place, Breedlove and Holland kept pursuing their suit.

Meanwhile, in another case, three couples—one married lesbian couple, one interracial couple, and one engaged lesbian couple—challenged the new magistrates law. These plaintiffs have argued that the measure essentially uses public money, in the form of paychecks, to get judges out of fulfilling their duties.

On Tuesday, the North Carolina Court of Appeals affirmed a lower court’s dismissal of the first challenge. The same day, the U.S. District Court for the Western District of North Carolina filed its dismissal of the second case. Neither decision had to do with the merits of the arguments; both found that the plaintiffs bringing the suits don’t have standing, meaning they don’t have the legal right to bring their respective challenges. While these cases will likely be appealed, both decisions suggest that, once passed, laws like North Carolina’s will prove difficult to take down in court.

Not many states have put laws like this in place, even if legislators have wanted to. North Carolina’s law was passed in June of 2015, shortly before the U.S. Supreme Court declared same-sex marriage to be legal. Some legislatures, like Florida, Minnesota, South Carolina, and Virginia, have introduced similar legislation but have not yet passed it. Others have been thrown out: A sweeping law in Mississippi, for example, created exemptions for judges, along with select exemptions for other people who have religious objections to same-sex marriage or gender-reassignment surgery, but a federal judge blocked it from going into effect in July. The other major state that has taken up this issue is Kentucky, where the Rowan County clerk Kim Davis was jailed for refusing to sign same-sex-marriage licenses or affix her office’s name to the certificates. A law signed in April addressed that issue by removing the requirement that a clerk’s signature or office name be included on marriage licenses.

North Carolina’s judge law doesn’t affect a huge number of public officials: One of the suits alleges that “at least 32 magistrates across North Carolina who had previously performed marriages for opposite-sex couples invoked religious beliefs to recuse themselves.” But it has become a symbol in a much bigger fight. Now that same-sex marriage is legal in the United States, what rights should religious people have to avoid involvement in the ceremonies based on moral objections? Legislatures are also dealing with this question when it comes to other LGBT rights: Less than half of states forbid discrimination against lesbian, gay, bisexual, and transgender people in housing, hiring, and public accommodations, and LGBT advocates are pushing for new legislation in the states where those protections don’t exist.

While many states have become paralyzed on this issue, stuck in the back-and-forth between LGBT rights and religious-freedom claims, North Carolina is one of the few that has taken action. H.B. 2, a law passed in March, orders transgender residents and visitors to the state to only use bathrooms that correspond to their biological sex at birth, rather than facilities that match their gender identity. The statute further forbids states and counties from passing their own public-accommodations protections that would allow transgender people to use facilities of their choice. Because of these laws, North Carolina has made a name for itself as the state where LGBT rights and religious-freedom claims have come into conflict.

While the lawsuits that were dismissed this week are narrowly about the magistrates law, the stakes are really about this bigger fight: Those involved are trying to affirm or deny a religious individual’s right to stay out of the gay-marriage business. The details matter, though. Unless these plaintiffs can persuade a judge that they have the legal right to take these questions to court, they won’t be able to make changes with litigation.

Perhaps one set of plaintiffs will win their challenge on appeal. Or maybe a better case, involving people who are more clearly affected by this law, will come along. Either way, the law will stay in place for now, and for the foreseeable future. North Carolina judges will continue to be able to refuse to perform same-sex marriages. And the Tar Heel state will remain the primary battleground for legal fights over LGBT rights and religious freedom.