Religious Freedoms of Public Employees: Why the Magistrate Recusal Bill is Unconstitutional

By: Adam Melrose

The North Carolina General Assembly is attempting to limit individual rights once again. Senator Phil Berger, a Republican from Rockingham, NC, filed a bill on January 28, 2015, entitled “Magistrates Recusal of Civil Ceremonies.”[1] This bill would allow any magistrate the right to recuse him or herself from performing a lawful marriage on the basis of a “sincerely held religious objection.” In addition, any magistrate recusing him or herself under this bill would be immune from any disciplinary action resulting from his or her refusal to marry a couple that, under the law, may be lawfully married in North Carolina.

What does this bill mean?

The bill has been featured prominently in the news since it was first introduced in the North Carolina legislature. However, the media has generally provided an erroneous description of this bill, labeling it an “anti-gay marriage bill.” There is some truth to the news reports’ descriptions. This bill appeared in the General Assembly just months after the Federal Fourth Circuit of Appeals ruled that banning same-sex couples the right to marry was unconstitutional. However, this description does not convey the full weight and magnitude that the bill could bring to bear. This bill allows for a magistrate to recuse him or herself for “any sincerely held religious objection.” It does not include language that limits recusals to religious objections based solely upon same-sex marriage.

Under the exact language of the bill, a Catholic magistrate could refuse to perform a marriage of a couple who had been previously divorced by stating that his deeply held religious beliefs object to all divorces. The media, by focusing the general public’s attention on the divisive issue of same-sex marriage, has inadvertently kept the public eye off the true insidious nature of this bill. While there are still plenty of people in North Carolina who are opposed to same-sex marriage, there are few people who would affirmatively state that a public official can refuse to perform a marriage of a previously divorced couple. However, even if the bill was only directed at same-sex marriages, it is unlikely that Berger’s bill would survive constitutional challenge upon being passed into law.

First Amendment Justifications

Berger’s rationale for this magistrate recusal bill is simple: Berger believes that 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 court – so they are not forced to abandon their religious beliefs to save their jobs.” This rationale does not withstand constitutional scrutiny because magistrates are public employees and therefore must abide by the law.

Photo courtesy of Getty Images.

Photo courtesy of Getty Images.

A public employee has no right to object to restrictions placed upon his or her conditions of employment, including those restricting constitutional rights.[2] As Supreme Court Justice Oliver Holmes once said, “A policeman may have the constitutional right to talk politics, but he has no constitutional right to be a policeman.” State actors, as the literal “hand” of the government, are required to follow the laws of the government, even if following those same laws may conflict with personal views held by the government employee that would otherwise be constitutionally protected if the individual worked in the private sector. If the government employee has an issue with a law, it is that employee’s prerogative to quit his or her job and seek employment elsewhere.

Furthermore, the state may not selectively apply laws as it sees fit based upon the whims of each individual state employee. The Equal Protection Clause of the Fourteenth Amendment prohibits this practice explicitly. The Fourteenth Amendment states that no State “shall deny to any person within its jurisdiction the equal protection of the laws.” [3]  The law, as it now stands, affirmatively states that bans on same-sex marriage are unconstitutional. As a result, magistrates, acting on behalf of the government, may not deny a marriage license to a lawfully eligible couple without running afoul of the Fourteenth Amendment. The privately held beliefs of the magistrate are of no consequence, no matter Berger’s attempts to use the language of the First Amendment as a smokescreen for an unconstitutional action.

Berger’s magistrate recusal bill is also not reconcilable with some of the other language in the First Amendment itself. While Berger goes to great lengths to argue that the bill is to protect the magistrate’s “religious beliefs to save their jobs,” this only addresses the “freedom of speech” portion of the First Amendment. [4] The First Amendment also requires the separation of church and state: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Supreme Court Justice Hugo Black famously stated that the government may not “pass laws which aid one religion, aid all religions, or prefer one religion to another . . . in the words of Jefferson, the First Amendment clause against establishment of religion by law was intended to erect ‘a wall of separation between church and State.’”[5]

A Step in the Wrong Direction

This bill, without a doubt, creates a situation where the state government, through its employees, would be able to act based upon their “sincerely held religious objections.” It is irrelevant that there may be magistrates of every religious creed affected by this legislation; the Establishment Clause does not allow the government to pass laws to aid any religion even if the bill does not discriminate in favor of any religion in particular. Berger’s bill discriminates against those magistrates who hold strong moral beliefs that are not centered in religious ideology. This quandary is at the very heart of what the Establishment Clause was created to prevent.

The Magistrates Recusal of Civil Ceremonies bill is a poorly constructed attempt to attack constitutional freedoms central to our country’s creed. The fact that this attack is shrouded by homophobic zealotry adds insult to injury. The members of the General Assembly should look beyond the trappings of Berger’s bill and realize that if this bill were to be passed into law it would only hurt North Carolina’s public image. Besides, Berger’s bill would not make it a month in the court system before being ruled unconstitutional. This is not the attention North Carolina wants, or needs.

 

UPDATE: On February 25, 2015, the NC Senate passed the bill 32-16, exempting magistrates from performing weddings. For more information, see the News Observer and the NC Legislature Bill History.

 

[1] The filed bill can be accessed online here: http://www.ncleg.net/Sessions/2015/Bills/Senate/PDF/S2v0.pdf.

[2] Connick v. Myers, 461 U.S. 138, 142-43 (1983).

[3] U.S. Const. Amend. XIV.

[4] U.S. Const. Amend. I.

[5] Everson v. Board of Ed., 330 U.S. 1, 16 (1947).

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