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

February 26, 2015

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:

[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).

CSL Students Hear Supreme Court Oral Arguments During Spring Break

April 11, 2013

This year the Supreme Court oral arguments for the California “Prop 8” case, Hollingsworth v. Perry, and the DOMA case, U.S. v. Windsor, coincided with Charlotte School of Law’s Spring Break.  Caleb Newman, a 2L, and Adria R. Crannell, a 3L, had the rare opportunity to attend the oral arguments in Washington, D.C.

Witnessing History Evolve, Maybe

By: Caleb Newman

Photo Credit: Caleb Newman

Photo Credit: Caleb Newman

Last week, I was one of ten fortunate students from our school to travel to the Supreme Court of the United States to observe oral arguments in Hollingsworth v. Perry, the California Proposition 8 case, and United States v. Windsor, the DOMA case. The issues in these two cases have been discussed and belabored by the news media on television and the internet, pastors in the pulpit and during prayer sessions, students in classrooms and symposiums and forums, politicians on the campaign trail and during press conferences, and social activists on television shows and social media websites. But at the end of the day (or, rather more appropriately, at the end of the Court’s term), the Justices will have the final word.

There has been much speculation regarding the anticipated outcome of Prop 8 and DOMA. Will the Justices even reach the merits of Hollingsworth, instead kicking the case on Article III standing grounds? Will the Justices find that the petitioners have Article III standing and find that there is a fundamental right to same-sex marriage? Will the Justices employ a rational basis review, or some sort of heightened scrutiny? Has DOMA met its end?

Photo Credit: Caleb Newman

Photo Credit: Caleb Newman

Listening to the Justice’s questions and the points they were trying to make during oral arguments last week, it was clear how some Justices are likely to stand on some of the issues: Justice Kagan’s reading of the House Committee Report quoting “moral disapproval” of homosexuality; Justice Kennedy’s thoughts on the Prop case being improvidently granted; Justice Ginsburg’s dismissal of the theory that children “do best” with heterosexual parents; Justice Alito’s statement that same-sex marriage and civil unions are “newer than cell phones and the internet;” and Justice Scalia’s assertion that in order to find a law unconstitutional there must be some sort of “start date” for the unconstitutional law.

I am in no position to predict an outcome of these cases nor will I attempt to answer the questions above. However, standing outside of the Court on Tuesday and Wednesday made me realize that there are millions of Americans who have a deep, personal stake in the Court’s outcome. Seeing the hundreds of people waving signs, locking arms, engaging in dialogue, and marching down the street chanting and singing caused me to develop a deeper appreciation and respect for the Court.

Photo Credit: Caleb Newman

Photo Credit: Caleb Newman

I think our founding fathers would have been proud to see the peaceful yet powerful demonstrations on First Street last week. And until the end of June, when the Court is likely to announce its opinion in these two landmark cases, Americans will continue the debate that has raged on for decades. But as one commentator remarked, “The right to same-sex marriage will not be achieved by amicus briefs or court opinions, but rather by time that will pass by allowing Americans to see that this fundamental right is not destructive as some believe.”

Hoping to Witness History

By: Adria R. Crannell

Last Tuesday, I was lucky enough to gain entrance to the Supreme Court during oral arguments for Hollingsworth v. Perry, also known as “Prop 8.” I was spending my spring break in Washington, D.C. for an internship at the National Legal Aid and Defender’s Association and was encouraged to spend the morning at the Court. I heard that people were lined up as early as Saturday afternoon for Tuesday’s arguments, so I feared I would not be able to get in. Walking from the metro stop just before 8am, I could see the line already formed down the block. There was a group offering coffee, bagels, and signs, I grabbed a bagel and a bright yellow sign with three “stick-figure” couples; two men, two women, and one man, one woman. I made pleasant conversation with the folks in line around me, including a man from Utah who helped write one of the amicus briefs for the case, a mother from Michigan whose son just graduated from Cooley Law School, and a lesbian couple, one of whom was attending law school in Rhode Island. A separate line for Wednesday’s arguments on the Defense of Marriage Act (DOMA) had already formed.

Photo Credit: Adria Crannell

Photo Credit: Adria Crannell

As we speculated on the outcomes of the cases, a parade of ministers and congregants came through singing “This Little Light of Mine,” passing out PRIDE flags, and carrying signs encouraging the Court to rule in favor of gay marriage. With the exception of the Westboro Baptist Church, there was nary a dry eye in line. Although there were many clever and powerful signs, my favorite was the one that said “Mawage is what bwings us togeva today,” in a nod to the classic 80’s film, The Princess Bride.

Photo Credit: Adria Crannell

Photo Credit: Adria Crannell

As I was handed a little yellow ticket granting me three minutes of viewing time in the back of the Supreme Court, I was filled with excitement like a child on Christmas morning. I couldn’t believe I was one of the lucky ones. I was positively beaming at having the opportunity to be present, even for a short time, in the Court for what, I hope, turns out to be one of two landmark decisions. My mind was racing, trying to take everything in; I had turned my Facebook newsfeed into Twitter, posting near-constant updates, both so I could share one of lifetime’s greatest privileges with friends and family, and also so I wouldn’t forget anything. Around 10:45 a.m., midway into the day’s two-hour arguments, after going through security, twice, we were led to a small section in the back of the Court, behind red velvet curtains.

Due to the curtains, I was not able to see every Justice and wasn’t always sure who was speaking, but I was able to see Justice Scalia as he repeatedly hounded Theodore Olsen, the attorney challenging Prop 8, with the question of “when did it become unconstitutional to prohibit gay marriage?” The two bantered back and forth with Olsen attempting every maneuver the English language allowed to avoid putting a designation on when, ultimately stating he didn’t know. With that, my time was up and I was escorted out of the back room.

Photo Credit: Adria Crannell

Photo Credit: Adria Crannell

My thoughts still swirling, in awe that I was able to be present for an argument in front of the Supreme Court, to see some of the Justice’s whose words I have spent the last three years reading, to hear the questions and answers that will later become another decision read by future students, to take in as much as possible while trying to apply what we discussed in Constitutional Law just the week before, feeling my law school career boiled down to three minutes in which I hope to have witnessed history.

%d bloggers like this: