About North Carolina’s magistrate bill – UPDATED

Timothy Kincaid

May 28th, 2015

Today the North Carolina House of Representatives will vote for the third and final time to approve Senate Bill 2. As it has passed the Senate and there are no revisions, it will go directly to the Governor. And while Gov. Pat McCrory has said that he does not support the bill, he may let it become law without his signature.

Quite a bit of kerfuffle has been raised about the bill with various “EMERGENCY!” emails flying about. But, within the LGBT community, not a lot has been said about the content of the “anti-gay marriage bill”. So I read the bill. And it may not be so very ookie-spookie scary as one otherwise might think.

Here’s what it says:

  • The Register of Deeds in a county cannot refuse to issue marriage licenses to same-sex couples. That is an integral part of their duties and they have to fulfill their obligations.
  • Assistant Registers of Deeds can, however, give up issuing marriage licenses altogether as part of their tasks. But they cannot pick and choose; It’s either all legal marriage licenses or none.
  • Magistrates can give up conducting marriage licenses altogether. But they cannot pick and choose; It’s either all legal marriage ceremonies or none.
  • If all magistrates in a jurisdiction refuse to conduct civil marriages, a magistrate will be assigned by the Administrative Office of the Courts. Until that magistrate is assigned, the Chief District Court Judge (or his assignee) will be deemed a magistrate to conduct civil marriages. There is no down time.
  • Marriages before a magistrate must be available a minimum of ten hours per week and over at least three days per week. This appears to be a new requirement.

This is not an onerous burden on same-sex couples. No gay couples are being turned away where straight couples are accepted. All legal licenses are being issued and every county is providing magistrates for marriage, impartially.

In fact, the greatest imposition of this bill is on the Register of Deeds and the Chief District Court Judge who are tasked with managing staff and ensuring that the newly added minimum service requirements are upheld.

The only question that I see remaining, is whether individuals who work for the State should be compelled to participate in procedures which violate their conscience in order to maintain employment. And that is an matter about which people of good will may differ.

UPDATE:

North Carolina’s Republican Governor has stated that he will veto the bill. (Citizen Times)

Acting just hours after the legislation passed the House, Gov. Pat McCrory said Thursday he will veto a bill that would allow some state officials to opt out performing or issuing documents for same-sex marriages.

“We are a nation and a state of laws. Whether it is the president, governor, mayor, a law enforcement officer, or magistrate, no public official who voluntarily swears to support and defend the Constitution and to discharge all duties of their office should be exempt from upholding that oath,” McCrory said in a statement.

The vote in the House was not strong enough to overturn a veto.

UPDATE:

We mistakenly stated above that the vote in the House was not strong enough to overturn a veto. That is incorrect. A veto requires override requires “three-fifths of the members of that house present and voting”. The House vote was 60.9% (67 yes votes of 110 cast). To survive a veto override, two yes votes would have to vote not to override.

Because the majority of yes votes were from the same party as the Governor, there may be some unwillingness on the part of some members to defy the decision of the leader of the party. So it is not an entirely unlikely scenario that the bill will stay killed.

Steve

May 28th, 2015

Should have figured that right-wing religious nutter like Timothy would support this

Dennis

May 28th, 2015

Wouldn’t this essentially force “traditional marriage” folks out of those positions? If I was hiring a person, I would certainly ask if they would be willing to perform all of the duties (including serving same-sex couples). If not, no job. So in trying to protect the anti-gays, they are essentially filtering them out of those jobs.

Ben in Oakland

May 28th, 2015

“is whether individuals who work for the State should be compelled to participate in procedures which violate their conscience in order to maintain employment.”

I have to disagree with you here, Timothy.

They are not being compelled to participate in an activity which violates their conscience. They are being told to do their jobs.

It is VERY telling that the only place these so-called objections come about is when people have to treat gay people the same as everyone else. If we allow it for the anti-gay conscience, then it seems we must also allow it for all religious objections to anything.

Priya Lynn

May 28th, 2015

Right on Ben.

Jim Burroway

May 28th, 2015

This isn’t about whether perceived “right wing nutters” supposedly “support” this bill or not. I don’t see anything in Timothy’s post to suggest he supports the bill, but whether he does or not, this is a post I myself could easily have written even though I most certainly do not support it.

We have always held to the belief that whatever we do or do not support, that our positions will always be better grounded in fact than in hype. Before reading Timothy’s post, I had just finished reading the actual text of the bill along with a commentary from one of the more liberal (and actually quite prominent) gay-rights activists, who said almost exactly the same thing Timothy said, minus Timothy’s final sentence.

That this particular bill is being driven by anti-gay animus, I believe, is beyond doubt. But it is certainly true that it does not single out gay people specifically, and if the bill is implemented as the text says it must be, it cannot single out any group whatsoever. I believe that the bill will most certainly impose onerous and needless impositions on people why want to marry, but the same impositions will apply to everyone who wants to marry, gay or straight, rich or poor, black or white, Christian or Muslim, etc. It’s an all-or-nothing package, and it also has provisions that ensures that marriage will continue to take place for everyone regardless of what the magistrates in the jurisdiction decide.

Jim Burroway

May 28th, 2015

I would also add that it is bill like this that really make anti-gay opponents all the more childish. In their anger, they are willing to lash out at everyone, gay or straight, as part of their immature temper tantrums.

jerry

May 28th, 2015

“Marriages before a magistrate must be available a minimum of ten hours per week and over at least three days per week. This appears to be a new requirement.
This is not an onerous burden on same-sex couples.”

Really it’s not an onerous burden on gay couples?

Will heterosexual couples be restricted to ten hours a week and also have to check with the office to find out what those hours are this week? Or is it okay to make gays second class ?

Will the bigots who refuse to accept gays as full citizens of the nation still get paid the same amount of money after they have dumped part of the work load on their co-workers? Seems to me they should get a nice reduction in pay.

Timothy Kincaid

May 28th, 2015

jerry

Will heterosexual couples be restricted to ten hours a week and also have to check with the office to find out what those hours are this week? Or is it okay to make gays second class ?

Yes, the exact same hours apply to all couples, gay or straight. The rules are identical for every couple. And prior to this bill, I’ve not seen any minimum hourly requirement at all.

As for the bigots dumping work on their co-workers… well, that may prove to be an issue in the office. It may, as Dennis noted above, impact hiring and advancement decisions.

Eric M

May 28th, 2015

I find it funny that once again, the dire ‘warnings’ from the right about same sex marriage causing a disintegration of opposite sex marriages was not a warning at all, but a threat.

In Alabama and now North Carolina, people who are involved in issuing licenses or conducting weddings are now trying to cause that very disintegration by not doing so for straight couples because of ssm.

It was the same with the ‘culture wars’. The right was telling everyone that if they didn’t get their way, they would start a culture war. They’re not getting their way here either and now they want to make it harder for ‘traditional’ marriages to be formed.

Priya Lynn

May 28th, 2015

This is not a matter about which people of good will may differ. There are not two sides to this issue, you’re either on the right side or the wrong side, if you oppose marriage equality you’re not a person of good will – case closed.

People who oppose gay marriage and are required to participate in procedures which they are opposed to are not violating their conscience anymore than a racist being forced to sit next to a black person on an airplane is violating his conscience by doing so. Opposition to marriage equality is not some high minded ideal that can be justified, its unjustifiable bigotry in the same vein as a racist desiring to avoid contact with black people.

I thought Timothy’s description of this law made it sound not to bad although I’m not convinced he gave a true description of it. What I really took offense to was his deplorable description of this as something people of good will can differ on and that having to participate in procedures one is opposed to is a matter of “conscience”. A matter of conscience involves a stand on right versus wrong and anyone who opposes gay marriage is unequivocably in the wrong. It is not a matter of conscience to desire the perpetuation of evil.

Nathaniel

May 28th, 2015

One of the going questions is when these civil servants get to recuse themselves. Are they required to do it before the start of a work day, or can they suddenly decide that couple X in front of them is too repugnant for the civil servant to continue carrying out his duties? (Note that, as far as I understand, this bill does not limit the “religious” reasons for stepping down, so this could hypothetically include any sort of couple: mixed race, mixed religion, former marital status, etc.)

Frankly, I really must draw the line at public servants being able to not do their job because they might have to serve “those” people. Our tax money is going to pay them, so now how much time, effort, and funding is going to be wasted trying to reshuffle the board. Will everybody get their license and their marriage? Sure. But at what cost. Will there be counties that reduce their service to the minimum because they don’t have enough willing employees to fill all the previous shifts? Are there counties that will have more employees than work to keep them busy because they can’t fire anybody that has recused herself?

At the same time, what role is this legislation playing if all we are doing is shuffling around personnel? Are there counties already where the personnel have been shifted to keep certain employees from having to do marriage-related tasks? It is not outside the realm of possibility that, in some cases, magistrates and RofDs have gone to their superior with their concern, and have thus been reassigned to another task rather than forced to resign.

OK, maybe this is being blown out of proportion, but there is another factor here. We have debated hate crimes and terrorism on this site before, and I think what we are looking at would fit nicely into that debate. Whatever the actual effects of the law, exaggerated or not, is immaterial to the message its passage sends: “We don’t like your kind ’round these parts.” As Timothy noted, the animus driving this bill is beyond doubt. The goal is to hurt the LGB community. Will it do so through the effect of the law? Probably not. But it will most certainly do so on a psychological level: “We hate you so much, we bent over backwards to make sure that no civil servant has to serve you if they don’t want to.” Not much legal punch, but it doesn’t seem very far from what one might call a terrorist act.

Ryan

May 28th, 2015

“Good people” debate on whether or not government employees should have to do their jobs? Huh?

Nathaniel

May 29th, 2015

Timothy, the numbers I have seen say the vote in the House is close. The bill finally passed the House with a 3/5 majority (necessary for override), but if that will hold to ensure an override is not immediately clear. One possibility is that it is never even brought up for an override vote, since the legislators have already proven their conservative chops. Nobody cares about McCrory, who has always been likely to be a one-term Governor anyway. So, not real political sacrifice on McCrory’s part, but the legislators have been saved the embarrassment of succeeding in enacting an unpopular law, while still getting to appeal to the most savagely anti-gay voters.

Eric Payne

May 29th, 2015

Will McRory’s veto become a campaign issue? I’d SCOTUS rules as most seemingly expect it to rule, can it be a campaign issue? Once government employees are exempted from actually doing their job in one instance, where does the erosion end? In Pennsylvania — to go for an extreme — could Motor Vehicle employees who are Amish be exempted from issuing drivers’ licenses or auto registration renewals?

Timothy Kincaid

May 29th, 2015

Nathaniel, thanks. See my second update above.

And you are quite right. There may not be an override attempt.

For an example of legislators displaying their conservative chops without quite passing anything at all, the Texas carnival of silliness has had me laughing all week.

Nathaniel

May 29th, 2015

Timothy, I am not sure how you got 84%. I get 60.9% which is just over 3/5.

Nathaniel

May 29th, 2015

Your “two votes” number is accurate, if you don’t consider that the House actually seats 120 representatives. If any of the absent or abstaining members vote on an overturn, then the numbers shift.

Timothy Kincaid

May 29th, 2015

Yes, that’s correct. Bad typo.

Nathaniel

May 29th, 2015

I’m going to apologize for having so much to say on the topic, but I do live here, and this has been all over my news feeds for several days. But I thought I would share this, because it actually voices the opposite conclusion from my statement earlier regarding McCrory and reelection.

http://www.politicsnc.com/walkin-that-tightrope/?utm_source=PoliticsNC+Subscribers&utm_campaign=52ad8ee974-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_5e05826bc1-52ad8ee974-119248701

Timothy Kincaid

May 29th, 2015

Nathaniel,

Don’t apologize. We all benefit from a local perspective. The more info, the better.

Aaron Logan

May 29th, 2015

Timothy: I am unclear on what sorts of beliefs might grant someone the privilege of not doing their job. Is it only religious beliefs? Or do you think other kinds of beliefs might be the basis of this privilege as well? I think that it would be a violation of the 1st Amendment if government privileges religion or irreligion or one religion over another. Conscientious objection ought only apply where participation is mandated by law such as the draft.

Priya Lynn

May 29th, 2015

Yes, why should religious beliefs be privileged and respected above non-religious beliefs?

Ryan

May 29th, 2015

Special rights for believers, I guess.

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