Suit Challenges North Carolina Law Allowing Officials To Opt Out of Same-Sex Marriage Duties

As previously reported, last June the North Carolina General Assembly overrode the governor's veto to pass to pass Senate Bill 2 that gives individual magistrates have the right to recuse themselves from performing marriages based on any sincerely held religious belief and gives individual register of deeds personnel the right to opt out of issuing marriage licenses on similar grounds. (See prior related posting.) Yesterday three couples filed suit in federal district court challenging the constitutionality of the new law.  One of the couples is already in a same-sex marriage; a second same-sex couple acting as plaintiffs are engaged to be married; and the third are a blind, heterosexual interracial couple who in 1976 had to sue in order to marry because two North Carolina magistrates refused to perform the ceremony on religious grounds.

The complaint (full text) in Ansley v. State of North Carolina, (WD NC, filed 12/9/2015) contends that Senate Bill 2 violates the Establishment Clause, the Equal Protection Clause, and the Due Process Clause.  WNCN News reports on the filing of the lawsuit.  Rev. Mark Creech of the Christian Action League called the lawsuit "an effort by gay activism to run people of faith completely out of the public sector."  On the other side, Rev. Jamine Beach-Ferrara of the Campaign for Southern Equality argued that the bill "distorts the true meaning of religious freedom."

Town Brings Back Nativity Scene-- This Time With Frosty and Reindeer

Last year, the town of Dallas, North Carolina moved its traditional nativity scene from the courthouse lawn to private property down the street under threat of a lawsuit from the Freedom From Religion Foundation. However many town residents were angry over the move.  So, according to WSOCTV News yesterday, this year a nativity scene is back on the courthouse lawn.  It is larger than the former one, but also includes figures of Frosty the Snowman and reindeer.  The city attorney told the town's Board of Aldermen that under Supreme Court rulings, a nativity display is permitted if it includes secular figures. FFRF still contends that the display is improper.

North Carolina Supreme Court Upholds School Voucher Program

In Hart v. State of North Carolina, (NC Sup. Ct., July 23, 2015), the North Carolina Supreme Court in a 4-3 decision reversed the trial court and upheld against constitutional attack the state's Opportunity Scholarship Program which offers some low-income students scholarships to attend private schools. The majority held that the state constitutional provision on the state school fund was intended "to protect the 'State school fund' in order to preserve and support the public school system, not to limit the State’s ability to spend on education generally." The provision requiring "a general and uniform system of free public schools" also does not bar the state's voucher program:

The uniformity clause applies exclusively to the public school system and does not prohibit the General Assembly from funding educational initiatives outside of that system.

The majority went on to hold that the appropriations for vouchers satisfy the public purpose requirement, and that taxpayer plaintiffs lack standing to  assert religious discrimination claims on behalf of students. Justices Hudson, Easley and Ervin dissented. AP reports on the decision.

The court also issued a short opinion in a companion case, Richardson v. State, relying on its holding in Hart.

Negligent Supervision Claim Against Diocese By Sex-Abuse Victim Can Proceed

In John Doe 200 v. Diocese of Raleigh, (NC App., July 7, 2015), a North Carolina appellate court held that the ecclesiastical abstention doctrine does not require dismissal of a sex-abuse victim's negligent supervision claims against the Catholic Diocese of Raleigh. The court held:

Were we to adopt the Diocese Defendants’ argument ..., then the First Amendment would, as a practical matter, serve as a complete shield to tort liability for religious organizations in the sexual abuse context except in those cases in which the plaintiff specifically alleged prior sexual assaults by the cleric at issue. We do not believe the First Amendment requires such a result.... Neutral principles of law allow a civil court to adjudicate Plaintiff’s claim that the Diocese Defendants knew or should have known of the danger posed by Sepulveda [a priest] to Plaintiff because of his sexual attraction to minors.

The court however reached a different conclusion on plaintiff's claim that the Diocese should have required the offending priest to undergo STD testing and should have provided the results to plaintiff:

This claim seeks to impose liability based on the Diocese Defendants’ alleged failure to exercise their authority over a priest stemming from an oath of obedience taken by him pursuant to the church’s canon law. As such, this claim directly “challenges church actions involving religious doctrine and practice” and cannot be adjudicated without entangling a secular court in ecclesiastical matters. 

Case Challenging Library Conference Room Policy Settled

On Tuesday, a North Carolina federal district court entered a Stipulated Final Judgment (full text) in Liberty Counsel, Inc. v. County of Wake, North Carolina (ED NC, June 23, 2015) after the parties agreed to settle the case. In the case, plaintiff challenged the county library's conference room policy that permitted non-profit groups to use library conference rooms for cultural, civic and informal educational purposes, but not for religious instruction, religious services or religious ceremonies. (See prior posting.) According to Liberty Counsel's press release, in the settlement "the library agreed to remove all offending bans on religion." The court's order also awarded nominal damages of $100 to plaintiff, and retained jurisdiction to enforce other parts of the settlement agreement if necessary.

North Carolina Legislature Overrides Veto Of Magistrates Recusal Bill

The North Carolina General Assembly yesterday overrode Governor Pat McCrory's veto of Senate Bill 2, Magistrate's Recusal For Civil Ceremonies.  The Senate vote to override, cast June 1, was 32-16. The House vote  yesterday was 69-41. (Vote history).  The bill provides that individual magistrates have the right to recuse themselves from performing all lawful marriages based on any sincerely held religious beliefs and that individual register of deeds personnel similarly may opt out of issuing marriage licenses. (See prior posting.) Raleigh News & Observer reports on the General Assembly's action.

North Carolina Governor Vetoes Bill Allowing Magistrates To Refuse To Perform Same-Sex Marriages

As reported by The Advocate, yesterday North Carolina Governor Pat McCrory, a Republican, announced he would veto Senate Bill 2 (full text), which was sent to him earlier in the day by the state legislature. The bill provides that individual magistrates have the right to recuse themselves from performing all lawful marriages based on any sincerely held religious beliefs and that individual register of deeds personnel similarly may opt out of issuing marriage licenses. The Governor in a statement said (full text):

I recognize that for many North Carolinians, including myself,  opinions on same-sex marriage come from sincerely held religious beliefs that marriage is between a man and a woman. However, 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; therefore, I will veto Senate Bill 2.

According to WITN News, a half hour after issuing the statement, he formally vetoed the bill.  In North Carolina, the Administrative Office of the Courts had previously issued a memo to judges and magistrates stating that magistrates must perform wedding ceremonies for same-sex couples who present a license in the same way they do for opposite-sex couples, and magistrates have filed suit challenging the absence of a religious liberty exception. (See prior posting.) The Gaston Gazette has reactions from various state legislators to the governor's veto.

North Carolina Magistrates Sue Over Requirement They Perform Same-Sex Marriages

Yesterday in North Carolina, a magistrate and a former magistrate (who had not been reappointed after 10 years of service) filed suit challenging a memorandum issued by the Administrative Office of the Courts in October requiring all magistrates to conduct same-sex marriage ceremonies in the same manner as any other marriage ceremony.  The memorandum was issued to implement federal court rulings striking down the state's same-sex marriage ban.  The complaint (full text) in Smoak v. Smith, (NC Super. Ct., filed 5/21/2015) contends that the failure to make exceptions for magistrates with sincerely held religious beliefs opposed to same-sex marriage violates their conscience, religious liberty, free speech, due process and equal protection rights under the North Carolina Constitution. Liberty Counsel issued a press release on the lawsuit.

North Carolina County Commission Chairman Says He Will Only Allow Christian Invocations

Reacting to a recent federal district court decision invalidating the invocation practices in a nearby county (see prior posting), Lincoln County, North Carolina, Board of Commissioners Chairman Carrol Mitchem told WBTV News last week that only Christian prayers would be permitted at Council meetings. He said in part:

Other religions, or whatever, are in the minority. The U.S. was founded on Christianity.  I don’t believe we need to be bowing to the minorities. The U.S. and the Constitution were founded on Christianity. This is what the majority of people believe in, and it’s what I'm standing up for....

I don’t need no Arab or Muslim or whoever telling me what to do or us here in the county what to do about praying. If they don’t like it, stay the hell away.... I ain’t gonna have no new religion or pray to Allah or nothing like that.... 

We’re fighting Muslims every day. I'm not saying they’re all bad.  They believe in a different God than I do. If that’s what they want to do, that’s fine. But, they don't need to be telling us, as Christians, what we need to be doing. They don't need to be rubbing our faces in it.

Another Commission member, Alex Patton, disagreed with Mitchem saying that the country was founded on freedom of religion and complained that Mitchem had "just exposed our county to potential litigation, which was needless."

North Carolina Counties Approve Display of "In God We Trust" Signs

Christian Post reported yesterday that the  McDowell County, North Carolina Board of Commissioners last week, working with the U.S. Motto Action Committee, approved placing "In God We Trust" signs in county buildings.  Two other county commissions in North Carolina took similar action earlier this year. Local reaction to the McDowell County decision has been mixed.

North Carolina Magistrates Forced To Resign Over Same-Sex Marriage Now Seek Reinstatement

As previously reported, last October North Carolina's Administrative Office of the Courts issued a memo stating that magistrates must perform wedding ceremonies for same-sex couples who present a license in the same way they do for opposite-sex couples. The memo led a number of magistrates to resign rather than perform same-sex wedding ceremonies.  Now, according to ABC News, two of the magistrates who resigned filed a state court lawsuit earlier this month seeking reinstatement, injunctive relief, damages and attorneys' fees.  Former magistrates Gilbert Breedlove and Thomas Holland contend that their religious freedom rights were infringed by requiring them to officiate at same-sex marriages.

Sheriff Tells Registered Sex Offenders To Attend Church At County Jail

In Graham County, North Carolina, the sheriff last month sent a letter (full text) to the 20 registered sex offenders in his county telling them that a North Carolina law barring offenders from being within 300 feet of premises where minors are supervised means that they may not attend church. The letter continues:

This is an effort to protect the citizens and children of the community.... That is why I am letting you know that if you want to go to a church service you are welcome to come to the Graham Co. Jail on Sunday's to attend church services.

Reporting yesterday, WCNC News  says that Sheriff Danny Millsaps now concedes that his wording may not have been totally correct, but he stands by his interpretation of the law.

City Settles Suit Challenging Christian Symbols At Veterans' Memorial

The King, North Carolina city council voted 3-2 on Tuesday to settle a federal lawsuit that had been filed against it in 2012 claiming that the design and flag policy of a Veterans' Memorial built by the city unconstitutionally advanced Christianity. (See prior posting.)  According to Stokes News, under the settlement the city will repeal a policy which resulted in a Christian flag often being flown on one of the flag poles at the memorial.  Under the settlement, the city has also already removed the statute of a soldier kneeling before a cross that was part of the memorial. The city will also pay $500,000 in legal fees to Americans United, and $1 in nominal damages to the plaintiff in Hewett vs. City of King.  The city agreed to the settlement when it became clear that the cost of going to trial might reach $2 million and greatly exceed the city's insurance policy limits, and that the city might lose its insurance coverage.  Councilman Brian Carico, one of the two voting against the settlement, said:

... before I am a council member, before I am a husband, before I am a father or a brother or a son, ... I am a Christian.... Every word and deed I do is supposed to be in the name of Jesus Christ.... I can’t vote to remove anything from that memorial because the intent is not there for anyone to be offended. Every veteran that memorial honors took an oath of God and country and they knew what God they were speaking of.

Ten North Carolina Magistrates Leave Over Performing Same-Sex Marriages

Time Warner News reported yesterday that in North Carolina, at least ten magistrates resigned or took early retirement last month because of their opposition to performing same-sex marriages. On Oct. 14, the North Carolina Administrative Office of the Courts ruled that magistrates must perform wedding ceremonies for same-sex couples who present a license in the same way they do for opposite-sex couples. (See prior posting.) There are a total of 672 magistrates in the state.

North Carolina County Commission Resolution Opposes Court's Marriage Equality Ruling

On Monday night, the Columbus County, North Carolina Board of Commissioners, by a vote of 6-1, passed a resolution asking for the federal court ruling invalidating North Carolina's same-sex marriage ban to "be reviewed and reconsidered to protect the foundation that America was established on."  According to WECT News, Commissioner Ricky Bullard who sponsored the resolution said it was motivated by his religious views, commenting: "In the Bible, it always talks about Adam and Eve. I've never heard it talk about Adam and Steve."

Avalanche of Same-Sex Marriage Legal Developments

In the last several days there has been an avalanche of legal developments relating to same-sex marriages:

Alaska:  Yesterday in Parnell v. Hamby, the U.S. Supreme Court issued an order denying a stay of a federal district court's decision striking down Alaska's same-sex marriage ban.

Arizona: in Majors v. Horne,(D AZ, Oct. 17, 2014) and Connolly v. Jeanes, (D AZ, Oct. 17, 2014), an Arizona federal district court in two short and substantially identical opinions struck down Arizona's ban on same-sex marriages, citing the 9th Circuit's decision earlier this month in Latta v. Otter striking down bans in Nevada and Idaho. (See prior posting.) State Attorney General Tom Horne announced he would not appeal and sent a letter to the state's 15 county clerks telling them that they may not deny marriage licenses to same-sex couples. Arizona Republic reports on developments.

Wyoming: In Guzzo v. Mead, (D WY, Oct. 17, 2014), a Wyoming federal district court granted a preliminary injunction against Wyoming's ban on same-sex marriage and recognition of same-sex marriages performed elsewhere.  However the court also granted a stay of its injunction until Oct. 23 to allow an appeal to the 10th Circuit or until an earlier date at which the state informs the court that it will not appeal. Governor Matt Mead's office announced that the state will file a notice with the district court that it will not appeal the decision.

Idaho: Two Christian ministers and their for-profit wedding chapel located across the street from the Kootenai County (Idaho) Clerk’s office (which issues marriage licenses) brought suit in an Idaho federal district court to enjoin the city of Coeur d'Alene from enforcing its anti-discrimination ordinance against them. The 63-page complaint (full text) in Knapp v. City of Coeur d'Alene, (D ID, filed Oct. 17, 2014) contends that the Ordinance violates plaintiffs' 1st and 14th Amendment rights as well as their rights under state law. Plaintiffs also filed a motion for a temporary restraining order or preliminary injunction.  ADF issued a press release announcing the filing of the lawsuit.

North Carolina: In North Carolina, the general counsel of the state's Administrative Office of the Courts on Oct. 14 issued a memo (full text) to judges and magistrates stating that magistrates must perform wedding ceremonies for same-sex couples who present a license in the same way they do for opposite-sex couples. Refusal to do so could lead to suspension, removal or even criminal charges. In response, on Thursday Rockingham County Magistrate Judge John Kallam who has religious objections to performing same-sex marriages resigned.  Alamance County Judge Jim Roberson, who originally suggested that Magistrates with religious objections be excused from performing same-sex ceremonies, issued a statement yesterday saying that magistrates in his county are required to perform ceremonies for same-sex couples. (Qnotes.)  Time Warner Cable News reported on developments.

Federal Government: On Friday, the U.S. Department of Justice announced that the federal government will now recognize same-sex marriages performed in Indiana, Oklahoma, Utah, Virginia, and Wisconsin for purposes of extending federal benefits. The action came after the Supreme Court refused review of Circuit Court decisions affecting those states. Apparently (though there is some slight ambiguity in DOJ's announcement) the federal government will also recognize same-sex marriages performed in Nevada and Idaho after the Supreme Court refused to stay the 9th Circuit's decision as to those states. (See prior posting.)

North Carolina Supreme Court Allows Direct Appeal of School Voucher Program

The Winston-Salem Journal reports that on Friday the North Carolina Supreme Court decided to allow a direct appeal of a trial court decision striking down the state's school voucher program. In August, trial court judge Robert Hobgood held that the state's Opportunity Scholarship Program violates various provisions of the state constitution relating to school funding and permits funds to go to private schools that discriminate on the basis of religion. (See prior posting.) Friday's ruling allows the parties to skip the usual appeal to an intermediate appellate court.  The North Carolina court of appeals has already allowed the voucher program to continue to partially operate while appeals are pending. (See prior posting.)

Marriage Equality Proponents Win Victories In Nevada, Idaho, North Carolina

As previously reported, on Wednesday U.S. Supreme Court Justice Anthony Kennedy issued an order temporarily staying the 9th Circuit's  mandate invalidating same-sex marriage bans in Idaho and Nevada, even though only Idaho officials applied for the stay.  Later the same day, Justice Kennedy issued a second order (full text) vacating the portion of his order staying the 9th Circuit's decision as to Nevada, presumably allowing same-sex marriages to begin immediately there.Then yesterday, the full Court issued an order as to the Idaho case (full text) reading:

The application for stay presented to Justice Kennedy and by him referred to the Court is denied. The orders heretofore entered by Justice Kennedy are vacated.

The 9th Circuit's decision affirmed the Idaho federal district court's decision invalidating Idaho's same-sex marriage ban.  However, because the 9th Circuit recalled its mandate ordering its affirmance effective immediately once the petition for a stay was filed with the Supreme Court, the parties are concerned that the decision by itself did not serve to dissolve the stay pending appeal of the district court's decision entered by the 9th Circuit in May. So yesterday the plaintiffs filed a motion (full text) to dissolve that stay, and (as reported by SCOTUblog) the 9th Circuit has called for a response by noon Monday, and a reply to that by 5:00 p.m. Monday. [Corrected chronology.]

Meanwhile, in General Synod of the United Church of Christ v. Resinger, (D NC, Oct. 10, 2014), a North Carolina federal district court on its own motion in a case challenging North Carolina's same-sex marriage ban held that the ban is unconstitutional as a matter of law.  In a brief opinion and order, the court pointed to the 4th Circuit's decision in Bostic v. Schaefer striking down Virginia's ban on same-sex marriage. (See prior posting.) The Charlotte Observer reports on the decision.

North Carolina Distributes First Voucher Funds While Challenge Is On Appeal

AP reports that last week the North Carolina State Educational Assistance Authority distributed $1.1 million under its Opportunity Scholarship Program to 109 private and religious schools for 568 qualifying students.  The largest amount of money-- $90,300 for 43 students went to the Greensboro Islamic Academy. $54,600 went to Word of God Christian Academy. The voucher program had been enjoined by a state trial court, but on Sept. 19 the state court of appeals ruled that, pending an appeal, students who had already been granted Opportunity Scholarships could receive the funds.

Trial Court Strikes Down North Carolina School Voucher Program

In North Carolina yesterday, a state trial court judge struck down on state constitutional grounds North Carolina's Opportunity Scholarship program. As reported by Reuters, Judge Robert Hobgood ruled that the voucher program diverts funds which can constitutionally be used only for public schools. Also some of the funding is going to schools that discriminate on the basis of religion. A 22-minute video of the judge reading his ruling is available online.  The written opinion does not appear to yet be available.  Supporters of the program as well as the state's Attorney General plan to appeal.  Previously the state had attempted to speed up awards of scholarship funds under the program to beat Judge Hobgood's decision. (See prior posting.) However, according to the Raleigh News & Observer:

The state agency in charge of administering the program had tried to disburse the first round of funds last week, but a technical glitch prevented the payments from going through, said Elizabeth McDuffie, director of grants, training and research at the agency.

The process was launched again starting on Monday with the goal of getting funds at the private schools by the end of this week.

When Hobgood ruled Thursday morning, the disbursement was halted. “No money has left the building,” McDuffie said.

UPDATE: A transcript of Judge Hobgood's ruling from the bench is now avaiable.