On Tuesday, Judge Max O. Cogburn Jr. dismissed a challenge to Senate Bill 2, the 2015 state law that gives magistrates the option to stop performing marriages if they have a religious objection. Cogburn is the same federal judge who struck down Amendment One, the state constitutional amendment declaring that legal marriage is between one man and one woman.The plaintiffs challenged the law on the grounds that their taxes would go to an unconstitutional purpose. The law directed that state courts ensure that alternative magistrates would be available if all officers in a jurisdiction had recused themselves, and the plaintiffs argued this would violate the First Amendment’s prohibition on establishing a state religion. Cogburn didn’t go for it, saying the plaintiffs had “merely generalized grievances with a state law with which they disagree” and therefore lacked the standing to sue.(The “establishment clause” legal argument isn’t quite as far-fetched as it sounds. As a nation, we have historically taken great care to keep even the appearance of religious favoritism out of official government action. Thus law have been overturned even when the harm suffered is “noneconomic or intangible,” such as sitting through mandatory prayer in public school.)From the beginning, some have dismissed the legal challenge as a political stunt in an election year. Some are using it that way, but I think it’s likely that the plaintiffs sincerely and truly believe they are harmed by the ability of an officer of a court of law to decline to perform a ceremony on religious grounds. I also believe that the magistrates whose religion tells them that marriage is a holy union between one man and one woman can sincerely and truly believe that acting outside that canon would violate their consciences.Both views are legitimate. For as important as the establishment clause is, the First Amendment does not end there. Right next to the establishment clause, the text makes it clear that Congress may not prohibit “the free exercise” of religion either. Far from an attempt to sanitize public life, the clauses taken together make it clear that the power of government can neither be used to promote a state religion (or atheism) nor to clamp down on religion (or atheism).The free exercise clause is no afterthought. Its legal history is as voluminous as the establishment clause. Neither takes precedence over the other; a balance should be struck when they conflict.S.B. 2 is nothing more than a legislatively enshrined religious accommodation, and religious accommodations in the workplace are not new. The U.S. Department of Labor notes that, with the free exercise clause as its basis, the Civil Rights Act of 1964 requires employers to seek accommodations when “an individual’s religious beliefs, observances or practices conflict with a specific task or requirement of the position.” Magistrate recusal may not fit neatly in this legal box, but the spirit is identical.S.B. 2 is a reasonable accommodation, at least for officials who could not have expected when they trained for, applied for, and accepted their positions to be forced to perform same-sex marriages. The new law accounts for the fact that the decision to sanction same-sex marriage in the state came about suddenly and undemocratically Cogburn’s 2014 order struck down a constitutional amendment that voters had easily passed, a vote that included support from many geographic and demographic groups.So for existing magistrates, the accommodation makes sense. However, I see no reason why new applicants for magisterial positions, with full knowledge of the job functions, should be able to recuse themselves. The law should have grandfathered the accommodation to apply only to current magistrates.There is an appeal on the way, and the ultimate legal disposition of S.B. 2 is unknown. One thing is sure, however. As society becomes more diverse, we will run into these conflicts more frequently. The principles that have served us since our experiment began can take us forward: tolerance and accommodation in public life are better than using the power of the state to enforce your views on others.
Economics was not one of my favorite subjects in college, so I avoided economic courses. But I do know a few things about human nature. If you tax income at too high a rate, corporations […]
H.B. 2, the bathroom law, has messed with North Carolina. Boycotts are taking sporting events out of state. LGBTQ folks want dignity; other folks want privacy when undressing. We’re fussing too much.As a lawyer and […]