Same-sex marriages became legal in North Carolina on Monday morning, and so William Locklear and Randall Jackson planned, quite reasonably, to solemnize their 31-year relationship on that day. But the pair encountered an ugly surprise at the Pasquotank County Courthouse when they arrived: The magistrate refused to marry the two men—because, he informed them, his religious beliefs forbade him from doing so.
And so it begins. The fight over legalizing anti-gay bigotry in the guise of “religious liberty” has finally moved from the marketplace to the courthouse. The baker who wouldn’t make a cake for lesbians is old news; the hot new homophobia revolves around marriage licenses, not flour and frosting. Already, conservatives in red states are drafting legislation granting anyone authorized to perform marriages—including civil servants—the right to refuse a marriage certificate to gay couples. And as courts bring marriage equality to deeply conservative states like Idaho and West Virginia, an increasing number of magistrates and county clerks will likely start refusing marriage licenses to gay couples based solely on their own personal prejudices.
Since the anti-gay right is already clamoring to rebrand these acts of homophobia as expressions of principled dissent, it’s important to point out exactly why they’re so galling and self-defeating. Take the current kerfuffle in North Carolina. The Pasquotank County Clerk of Superior Court has already confirmed that magistrates cannot legally refuse to grant marriages to qualified applicants, which, starting Monday, included gay couples. And Locklear and Jackson were, of course, eminently qualified applicants, since the Fourth Circuit’s ruling mandating marriage equality now controls North Carolina law.
The magistrate’s actions, then, were illegal—but they were also dishonest. At the start of his tenure, the magistrate took two oaths. In the first, he swore, “solemnly and sincerely,” to “support the Constitution of the United States.” The controlling federal law now states that the Fourteenth Amendment of the Constitution requires North Carolina to perform same-sex marriages. So much for “solemnly and sincerely”! In his second oath, the magistrate swore to “faithfully and impartially discharge all the duties” of his office, and to “administer justice without favoritism.” With rather pronounced partiality against gays, the magistrate has now refused to discharge his duties and declined to administer justice.
A lawbreaker like that doesn’t deserve to keep his job. But what about civil servants in other states? Many have statutes similar to the federal law at issue in Hobby Lobby, which forbid a state from “substantially burdening” a “sincerely held religious belief.” (These statutes are commonly called “RFRAs.”) When states like Arizona considered passing RFRAs last spring, they were clearly aiming to protect private businesses from having to serve gay customers.
But could RFRAs protect civil servants from having to serve gay people? Probably not. RFRAs always have an escape hatch built in: A law that “substantially burdens” religion is OK if it furthers a “compelling government interest.” And surely the government has a compelling interest in requiring civil servants to treat all citizens equally when performing the basic functions of their job. Could a county clerk refuse a marriage license to an interfaith couple, when doing so would violate his religious beliefs? What about an interracial couple? The government simply couldn’t function like this, with every civil servant refusing to do his job when it conflicts with his private prejudices.
North Carolina doesn’t have a RFRA—it tried, and failed, to pass one last year—making the case against the Pasquotank County magistrate a true slam dunk. But even in states with RFRAs, civil servants who hate gay people are probably out of luck: The state interest of a nondiscriminatory government likely trumps their religious beliefs, and no law yet exempts them from serving gay citizens. (Religious figures, meanwhile, are obviously allowed to marry whomever they want, thanks to the First Amendment.) In theory, states could change this by passing laws letting civil servants turn away gay couples. But right now, bureaucrats who refuse marriage licenses to gay couples in states with full marriage equality are nothing more than lawbreakers.