Friday, February 5, 2016

Liberty Counsel files to intervene in North Carolina magistrate case

Mat Staver

This is not complicated and I will get you up to date. On Thursday Liberty Counsel filed a motion to intervene in Ansley v. North Carolina on behalf of their client, a North Carolina magistrate. This case is about unconstitutionally allowing North Carolina magistrates to opt out of performing same-sex marriages. Our side says that a law allowing them to do so violates the Establishment Clause of the First Amendment and the Equal Protection Clause of the 14th Amendment. This is good news because once the inept Liberty Counsel gets involved, our side has an even better chance to prevail (although I think that we win on the merits anyway).


The motion asks the court to make Liberty Counsel's client,  Brenda Bumgarner, a defendant in this case in addition to the State of North Carolina. Ms. Bumgarner, a North Carolina magistrate, does not trust the attorney general of the state to adequately protect her interests.

Here's the deal:

Marriage equality has been a reality in North Carolina since October of 2014 when a federal judge struck down the state's same-sex marriage ban. The magistrates received a legal opinion advising them that their oath of office (which includes protection of the US Constitution) required them to marry all eligible persons.

From the complaint — a simple explanation:
Also on October 14, 2014, Michael Crowell, Professor of Public Law and Government, School of Government, University of North Carolina—Chapel Hill, sent an email to Judicial Chief District Court Judges …
[…]
After acknowledging the binding effect of this Court’s ruling statewide, Professor Crowell wrote, in part, “A magistrate has taken an oath of office to perform the duties of the office and, just like you [District Court Judges], does not get to choose which laws to follow and which not. Everyone would agree that it would not be proper for a magistrate to refuse to marry an interracial couple because the magistrate does not approve of such marriages. The same principle would apply to same-sex couples now. No doubt you can think of lots of other examples of laws which a judge might not approve personally but is obligated to uphold.”

Professor Crowell continued: “This is an issue about which people have strong opinions, and magistrates no doubt are divided just as other citizens are. The difference is that magistrates have taken an oath of office and are public officers. They, like you, are required to put their personal feelings aside when necessary. The judicial system could not work if individual officers acted otherwise.”
The administrative judges who supervise the magistrates posted Professor Cromwell's opinion as policy. Not happy with the situation, the North Carolina Senate passed SB2 in January, 2015. It allows magistrates to opt out of civil marriages due to sincerely held religious beliefs. The House voted its approval in May, 2015. On May 28, the governor vetoed the bill explaining:
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 veto Senate Bill 2.
On June 11, 2015 the legislature overrode the governor's veto and made no modifications after the ruling in Obergefell v. Hodges on June 26. On December 9 three gay couples sued the state in federal court claiming that SB2 is unconstitutional.

According to Liberty Counsel about 30 of the state's 700 magistrates have requested the accommodation. A statement from Liberty Counsel demonstrates why they are so unsuccessful:
"North Carolina is toying with forcing dozens of magistrates into a situation similar to Kim Davis, where they have to choose between following their conscience or face punishment. This illustrates the vitriol of hate toward anyone with an opinion different from the homosexual lobby," said Mat Staver, Founder and Chairman of Liberty Counsel. "If those who demanded that Kim Davis resign were genuine in their belief, shouldn't they now be pressuring Attorney General Cooper to resign if he cannot fulfill his legal duty to defend North Carolina law?"
Rubbish. If they cannot do the job that they swore to do then they should resign. This has nothing to do with opinions which are theirs to hold. Gay couples appearing before these magistrates have an absolute right to insist that they have the same constitutional rights as all other citizens. The introduction of Kim Davis into this matter is appropriate in one respect. She lost in court and is in the process of losing on appeal. The judge in this case should act accordingly.

We all subsidize this bullshit. Liberty counsel is tax-exempt and donations to Liberty Counsel are tax deductible.

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