RALEIGH — A federal judge seems inclined to let a legal challenge continue over North Carolina’s law allowing magistrates to refuse to marry same-sex couples, but only if those suing can prove they have the right to file the legal action.
U.S. District Judge Max Cogburn didn’t rule immediately after Monday’s hearing in Asheville, but seemed concerned about two issues. On one hand, he said no one had directly proven they had been harmed by the law. But he also noted that court administrators apparently allow magistrates to keep their objections secret, so gay couples who appear before them on other matters wouldn’t know about those objections.
Lawyers for the state want Cogburn to throw out the lawsuit. The judge said he found their arguments persuasive that gay couples couldn’t say they were being harmed as taxpayers, since the law requires another magistrate to be brought in for gay marriage duties.
“Everybody can get married. And nobody is forced to marry anybody,” said Cogburn, an appointee of President Barack Obama who was the first judge to strike down North Carolina’s gay marriage law two years ago.
Roughly 5 percent of North Carolina’s magistrates are refusing to marry same-sex couples for religious reasons, including every magistrate in McDowell County. A magistrate is being brought in from another county for gay marriages.
But Cogburn also said he’s bothered that when magistrates who claim a religious exception fill out a form saying so, court administrators appear to require that it be kept secret.
Gay couples who come before a local judge for an eviction or small claim have a right to know if that judge won’t marry gays, he said.
“When litigants come to you, they have to know they are getting a fair shot,” Cogburn said.
Lawyers for the two gay couples and one interracial couple suing to overturn the law said the case should go forward because no taxpayer money should go to a judge who refuses to uphold the law. The U.S. Supreme Court ruled in June 2015 that same sex marriages are legal throughout the country.
“Under our Constitution, every judge in every state is bound by the law,” attorney Luke Largess said.
A court decision to reject Mississippi’s religious-objection law means North Carolina and Utah are the only states that let government officials recuse themselves from performing same-sex marriages for religious reasons, according to the National Conference of State Legislatures.
The magistrate law is the third major piece of legislation out of North Carolina in the past three years to end up in court. Federal appeals judges recently rejected the state’s voter ID law. A law dictating which bathrooms people must use in government buildings is currently being challenged.
All three laws were passed by the state’s Republican-dominated Legislature. But Attorney General Roy Cooper, charged with defending state law, is a Democrat running against Republican Gov. Pat McCrory in November.
Lawyers for Republican lawmakers and groups of magistrates questioned Cooper’s commitment to defend the law, and asked to be added to fight the lawsuit. They noted that Cooper told The Associated Press in April 2015 he would have vetoed the magistrate law if he was governor. McCrory vetoed the bill for similar reasons, but his veto was overridden.
Cogburn indicated he would reject the intervention request because he thinks the attorney general’s lawyers are doing a good job.
Diane Ansley and Cathy McGaughey were among about two dozen people in the courtroom Monday. They are two of the plaintiffs in the case and also were part of the lawsuit that got North Carolina’s gay marriage law overturned. When it was, they sanctified their relationship of 15 years with a wedding as soon as they could.
They live in McDowell County and worry whether they can ever get equal and fair justice from their magistrates if they wouldn’t even marry them.
“It’s a very insecure feeling,” McCaughey said. “That’s not the way our country is supposed to work.”