Open Up and Say ‘Aah.’ Here are the new rules governing gay “marriage” in NC

Richard Burr’s favorite judge legalized gay “marriage” in North Carolina around 5:30 PM on Friday.  brideBy Tuesday, the Administrative Office of the Courts — the state agency overseeing all those guys and gals in the black robes — had published the ground rules for this brave new era:

Effective October 10, 2014, same-sex marriages are permitted and recognized in North Carolina in accordance with the courts’ decisions in the Fourth Circuit Court of Appeals, Bostic v. Schaefer, 760 F.3d 352, cert. denied sub nom. McQuigg v. Bostic, ___ S.Ct. ____, 2014 WL 4354536 (Oct. 6, 2014) and the October 10, 2014, order of Judge Max Cogburn in General Synod of the United Church of Christ, et al. v. Drew Reisinger, Register of Deeds for Buncombe County, et al. Judge Cogburn found “Article XIV, Section 6 of the North Carolina Constitution, North Carolina General Statute § 51-1 et seq., and any other source of state law that operates to deny same-sex couples the right to marry in the State of North Carolina, … unconstitutional as they violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution.”

As a result of these court decisions, we have received a number of questions from court officials regarding magistrates who refuse to marry same-sex couples. What follows are the questions and answers.

Question 1: May a magistrate who conducts other marriages refuse to marry a same-sex couple for whom a marriage license has been issued by the Register of Deeds?

Answer: No. Under the ruling now binding upon the State of North Carolina, to refuse to do so violates the equal protection clause of the U.S. Constitution. Before entering upon the office of magistrate, every magistrate is required to take an oath. That is a requirement imposed by Article IV, Sec. 7 of the North Carolina Constitution which states:

Before entering upon the duties of an office, a person elected or appointed to the office shall take and subscribe the following oath:

I,________________________ , do solemnly swear that I will support and maintain
the Constitution and laws of the United States, and the Constitution and laws of North Carolina not inconsistent therewith, and that I will faithfully discharge the duties of my office as Magistrate, so help me God. [N.C. Const., Art. IV, sec.7]

Performing marriage ceremonies is a ministerial act authorized as an official “additional power” of magistrates under G.S. 7A-292(9). That provision references the marriage qualification provisions in Chapter 51.

If a valid marriage license issued under G.S. 51-6 is presented, it is a statutory duty of the magistrate to conduct the marriage between the persons named in the license in the same manner as the magistrate would conduct any other marriage. A failure tfisto do so would be a violation of the U.S. Constitution under the federal ruling, and would constitute a violation of the oath and a failure to perform a duty of the office.

For these reasons, all magistrates must treat same-sex marriages for which a marriage license has been issued by the Register of Deeds the same way that marriages between a man and a woman are scheduled and conducted.

Question 2: What if a magistrate refuses to perform same-sex marriages?

Answer: If a magistrate refuses to discharge the duties of his or her office, including a refusal to perform a marriage of a same-sex couple, that refusal is grounds for suspension or removal from office, as well as, potential criminal charges. If any magistrate “… shall willfully omit, neglect or refuse to discharge any of the duties of his office … he shall be guilty of a class 1 misdemeanor.” G.S. 14-230. Our case law makes clear that this criminal provision remains enforceable in addition to the procedures for suspension and removal under G.S. 7A-173.

A magistrate “…may be suspended from performing the duties of his office by the chief district judge of the district court district in which his county is located, or removed from office by the senior regular resident superior court judge of, or any regular superior court judge holding court in, the district or set of districts as defined in G.S. 7A-41.1(a) in which the county is located. Grounds for suspension or removal are the same as for a judge of the General Court of Justice.” G.S. 7A-173(a). Canons 2 and 3 of the Code of Judicial Conduct are applicable here.

Canon 2

A judge should avoid impropriety in all the judge’s activities.

  1. A judge should respect and comply with the law and should conduct himself/herself
    at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

Canon 3

A judge should perform the duties of the judge’s office impartially and diligently.

The judicial duties of a judge take precedence over all the judge’s other activities. The judge’s judicial duties include all the duties of the judge’s office prescribed by

law. In the performance of these duties, the following standards apply.

  1. Adjudicative responsibilities.

(1)          A judge should be faithful to the law and maintain professional
competence in it. A judge should be unswayed by partisan interests, public clamor, or fear of criticism.

Question 3:  Does the reason the magistrate refuses to perform the marriage change the matter?judge

Answer: No.

So, it sounds like a sitting magistrate who has religious objections to gay marriage needs to go ahead and resign.  (Or file a heck of a potentially groundbreaking first amendment lawsuit.) MORE:

Question 4: Will the Attorney General represent a magistrate who refuses to marry a same-sex couple if the magistrate faces civil or criminal liability or removal for the refusal to marry the same-sex couple?

Answer:      Probably not. G.S. 143-300.4(a) sets out the four situations when the Attorney

General shall refuse to provide representation to an employee:

  1. If the employee’s act or omission was not within the scope and course of the employee’s employment as a State employee; or,
  2. If the employee failed to act because of actual fraud, corruption, or actual malice; or,
  3. If defense of the action on the part of the state would create a conflict of interest between the State and the employee; or,
  4. If defense of the action would not be in the best interests of the State.

Further, the Attorney General does not represent judicial officials in removal proceedings.

Question 5: A magistrate has received a call from a citizen, which threatened the magistrate if he or she performs same-sex marriages. What remedy does a magistrate have if the magistrate is threatened for discharging their duties in accordance with the law?

Answer: Threats against magistrates may be punished as Class I felonies under G.S. 14-16.7. If you are threatened by any individual, immediately contact law enforcement and notify your Chief District Court Judge, and Amy Funderburk or Pamela Weaver Best at the Administrative Office of the Courts.

 

32 thoughts on “Open Up and Say ‘Aah.’ Here are the new rules governing gay “marriage” in NC

  1. The AOC reports to Chief Justice Mark Martin. Did he sanction this? If so, there needs to be an emergency meeting of the NC GOP Executive Committee prior to the election. Martin is on the ticket with the GOP endorsement.

    1. The staff at AOC are almost entirely Democrat holdovers. This smells like a political ploy to damage Martin.

      The solution to this is very clear. A magistrate should just stop performing all marriages. That clearly is within their purview. I wonder if it would be within the powers of county commissioners to make it a policy of a county for magistrates there not to perform marriages at all.

    1. Making laws arbitrarily from the bench with no recourse is tyranny, plain and simple, however noble you personally find the outcome.

    2. They’ve always had the right to marry. That’s never been the issue. What they wanted was to force the rest of us to recognize such “marriages”. So apparently, the rest of us have now been deprived of our personal liberty.

      By the way, marriage isn’t a right. It’s a State interest and has been for at least 4000 years. Ensuring a future generation of productive taxpayers has always been in the interest of the State and that’s one trick that homosexuals aren’t very good at.

    3. Would (will) not the same apply to he/she who would marry their favorite pet? Why shouldn’t this now be permissible, as well? Marriage no longer has a definition, thanks to the willingness of judges to politicize their authority. LBGT … where morality goes to die.

      1. That’s the way it would appear, if marriage is “ruled” as not being between one man and one woman, except that in the legal sense it is a contract, which would only be between people.

    4. For you loony left types, I am sure that prostitution and drug use is, too. Along with incest and bigamy.

      Until the 1860s, crime against nature was a capital felony in North Carolina. We have gone from one extreme to the other in a century and a half.

      1. Prostitution is legal in some places as is some drug use. I thought you would know that.
        Incest varies in definition from state to state. Where is the line?
        Bigamy is not against the law.
        It does not make any of these things appealing or “right” for an individual but there are a lot of things in life that are not appealing or “right” that the law does not touch, look at “reality” television for instance.

        1. In Germany, they aren’t talking about splitting hairs on incest. They are talking about allowing a brother to marry his sister.

          Bigamy is indeed a criminal offense in North Carolina, and I think in all states.

          The world is going insane.

          1. Sure looks like you can’t wait to get to Germany.
            Obviously, different cultures (and U.S. states) view incest in different ways.
            You are right about bigamy (I was thinking of another offense). That too is viewed differently in different cultures.

          2. I have made it clear that I disapprove of incest, as I disapprove of homosexual marriage.

            You, on the other hand, appear to be so wrapped up in homosexual marriage that perhaps there are some personal reasons for that?

          3. My personal reasons, if you want to call it that, are that there are a lot of caring couples and caring families with same sex consenting adults who should have the same protections and status as caring couples and caring families with different sex consenting adults.

  2. “…as they violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution.”

    I have to laugh whenever I see that in reference to NC. The presiding judge in the Duke lacrosse lawsuits basically gutted those suits when he ruled that civil rights laws permitting civil suits against government officials do not apply to whites (or latinos, asians, or native americans) but only to those of African descent.

    IOW, civil rights laws in NC do not provide “equal protection” to any but a certain privileged class. No one else need apply.

    But in this instance, “equal protection” will be invoked to impose concepts the voters oppose.

    IOW, the law is what the judges want it to be, and nothing else.

  3. JBP – Who have stopped gays/lesbians from having relationships, from being with each other? They always had the right to form civil unions (And remember kids, that’s all gays/lesbians wanted, until those mean-old evil bible-thumpers came along) and sign contracts. The argument over gay marriage is built on a false premise. It is not about equality or love. It is about the destruction of traditional marriage, values and norms that up until 10 years ago, has always been in place. Now black-robed tyrants have perverted SCOTUS’s ruling in 2012 and used it for their own agenda. All of this is going to backfire on the militant homosexual lobby, once they start “demanding” that priests and Christian businesses accommodate them.

    1. The Archbishop of Westminster, the head of the Catholic Church in the UK predicted that allowing gay marriage in that country would lead to worse persecution of the Catholic Church than in the days of Henry VIII.

      Opposition to gay marriage is also the number three reason in the exit polls (following opposition to immigration and support for leaving the EU) for the huge rise of the United Kingdom Independence Party (UKIP), largely at the expense of the Conservative Party (whose leader David Cameron supported gay marriage even though the majority of his MP’s voted against it). In this year’s elections for the UK seats in the EU parliament, UKIP became the first party other than Labour or Conservatives to run first in a nationwide election in more than a century, while the Conservative Party came in at third place for the first time in its long history. In two special elections for the national parliament last week, UKIP won 60% of the vote in a former Conservative Party safe seat at Clacton, 35 percentage points ahead of the Conservative Party candidate, and came within 2 percentage points of winning what had been a Labour Party safe seat in Lancashire. UKIP had campaigned heavily in Clacton but barely campaigned in Lancashire. In a scheduled special election in another Conservative Party safe seat at Rochester and Strood, UKIP is 9 points ahead of the Conservative Party in the polls.

      If standing up against gay marriage packs a political punch in the UK, it will do it even more so in NC.

    2. You present the same argument as was presented decades ago about inter-racial marriages (when they were disallowed). Do you oppose having consenting adults of different races getting married???

      1. Same argument????? Hmmm???? I don’t seem to recall the Archbishop of Westminster making any pronouncments about inter-racial marriage or any impact in might have on persecution of the church.

        But then your argument would apply to legalizing incest (which seems to be moving forward in Germany) and bigamy (allowed already in many Muslim countries). It might even extend to bestiality (which is legal in Denmark, although the government is moving to change that).

  4. I found my grandparents papers from 1921 and there was only the license from the state and where does the Federal government have the right to be in the marriage business. This has always been a state right until this present administration. No wonder Joan Rivers was completely taken out of the picture after referring to the POTUS and FLOTUS as whaat they probably are.

  5. Homosexuals according to most studies represent about 2% of the population and I expect not all want to marry.I think we as a culture are so far down the rabbit hole that it makes little difference now..However science will probably solve the situation in the near future.If homosexuality is genetic then one will be able to know what sexuality a child will have prior to birth and should be able to be changed genetically.I doubt anyone will choose to let their unborn child remain a homosexual which will mean anyone who then becomes homosexual will do so by choice.How then will those who choose freely be viewed by society?

    1. By then, if that actually happens, there will be even more open acceptance to these harmless, loving, and supportive lives. The world will be a better place for it. The last thing we need is more hate and more opposition to consenting adults caring for each other.

    2. The genetic argument is an unproven theory. But since homosexuals cannot reproduce (unless they do something more bisexual), they often tend to recruit. Like former Congressman Bob Bauman of Maryland. After he got caught, it came out that he had become a homosexual after being molested himself by a homosexual as a young boy. I do not call this type of recruiting to be ”loving”. I consider it odious.

      But I have read of an organization called NAMBLA (I forgot what it stands for exactly, and I might have the letters slightly wrong) but it claims that sex between men and boys is just another ”sexual preference” and they should not be ”discriminated against”. Our society is sick indeed.

      Only a few decades, homosexuality was classed as a mental disorder. In some countries, it still is. Now it is something that normal people are punished for if they do not kowtow to it like baking a cake for a gay wedding.

      1. Homosexuality was called a mental disorder back when it was just beginning to be looked at by the psychiatric profession (w/ Puritan bias). As the lives of gay and lesbians were examined more by science that stigma was correctly removed. As we learn more about and from gay and lesbian couples we see them as just another part of a diverse society. 10-20 years ago probably fewer than 5% (my guess) would have supported marriage equality. Now, Gallup has 55% of us support marriage equality, ABC/Washington Post shows 77% of those under 30. In ten years those supporting marriage equality will be pushing 100% since this is, essentially, a non-issue in our society once we get over the former unjustified barriers. Even the Catholic Church is beginning to change its position on the issue.

  6. I’ve got no problem with this, glad to see it…

    If the government is going to be in the marriage business (they shouldnt be, but that’s an entire other problem), they need to do so with equal consideration towards all it’s citizens. There’s no reason I can see to treat “these” couples differently than “those” couples.

    And yeah, I suppose if you arent able to fulfill your role as a government representative going about it’s secular, government duties… then yeah, you should probably find another line of work. As a magistrate, you arent presenting yourself, you’re acting as an agent of the government. That’s kinda the job.

  7. The next redistricting will include gay districts, Hispanic districts, black districts, gay-black districts, gay-Hispanic districts and one district for those who love fly-fishing.

  8. Might as well leave the church out of the discussion. Most of the churches have already laid down for gay marriage and gay clerics.

    My church is now allowing the members to only follow 7 of the 10 Commandments. We get to choose which 3 we are going to disregard at the beginning of each year. You can change the 3 at the beginning of the new year.

    Sin is old hat and many churches are looking past sin to pop culture.

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