In
Ansley v. Warren, (WD NC, Sept. 20, 2016), a North Carolina federal district court dismissed for lack of standing an Establishment Clause challenge to North Carolina's
S.B. 2 that allows magistrates to recuse themselves from performing same-sex marriages on the basis of sincerely held religious beliefs. Plaintiffs, asserting taxpayer standing, pointed to expenditures involved in implementing the opt-out provisions. The court held, however:
Plaintiffs have not pointed to the establishment of any specific appropriation of funds by the legislature to implement the allegedly unconstitutional purpose of S.B. 2. The funding provisions that Plaintiffs challenge here—travel expenses for magistrates and retirement contributions—are not “expenditures made pursuant to an express [legislative] mandate and a specific [legislative] appropriation,” ... but are “incidental expenditure[s] of tax funds in the administration of an essentially regulatory statute,” which is not sufficient for the purposes of standing.
Dealing with a separate due process concern, the court said:
Because a magistrate’s “sincerely held religious objection” is secret, a person appearing before a state magistrate on a matter in said magistrate’s jurisdiction will not be aware of a potential bias against them. A law that allows a state official to opt out of performing some of the duties of the office for sincerely held religious beliefs, while keeping it a secret that the official opted out, is fraught with potential for harm that could be of constitutional magnitude.... But such matters must be dealt with as they arise.
