Equality vs. religious rights.

Photographer: Sara D. Davis/Getty Images

North Carolina's New Hurdle for Gay Marriage

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
Read More.
a | A

North Carolina just passed a law that allows magistrates to refuse to perform gay marriages -- or any others -- if the marriages violate their religious beliefs. It’s a terrible idea, of course, allowing public employees to skip out on their official obligations based on their private beliefs. But is it unconstitutional? And if so, why?

The law is compactly written: North Carolina officials can “recuse” themselves from performing marriages or issuing marriage licenses that would violate their religious beliefs. The law's language would allow a magistrate to refuse to preside at an interracial marriage or an interreligious one, provided the marriage violated the official’s religious beliefs.

The effect of the law may well be to make it harder for gay couples to get married in North Carolina. It will remain in effect, no matter what the Supreme Court rules this month on gay marriage. But on its face, the law doesn’t affect the right to marry. Rather, it establishes a new right for in-state officials not to preside at same-sex marriages.

I can think of several arguments that could render the law unconstitutional. But none of them is a slam-dunk.

The first is that the law effectively blocks gay marriage in the state, thus violating the equal protection of the laws. A federal judge previously ruled that same-sex marriage must be permitted in North Carolina. In practice if gay couples can’t find a magistrate to marry them, then the new law would be interfering with their constitutional rights as found by the federal judge.

The difficulty with this argument is that gay couples may in fact be able to find other public officials to marry them. Would it violate the couples’ equal protection rights if they had to drive one town over to find a magistrate willing to marry them? The answer might be yes, if it systematically disadvantaged gay couples. But there’s no certainty that a court would find that the religious scruples of the individual magistrate created an equal protection violation.

A related yet distinct equal protection argument would be that the law is intended to discriminate against gay couples, and therefore lacks a legitimate, rational basis.

Yet as written, the law facially does have a rational legitimate basis, namely the protection of the religious liberty of state officials. A court in theory could find that the law’s true, underlying intent was anti-gay animus. But that result seems relatively unlikely given that religious groups across the country have been concerned about the liberty of ministers, priests and rabbis not to perform gay marriages. In contrast, when the Supreme Court has found that bans on gay marriage lack a rational basis, there’s been no countervailing religious liberty argument.

That brings us to the separation of church and state. It could be argued that the North Carolina law amounts to an establishment of religion, because it creates an exemption from a generally applicable law specifically for religious objections to marriages that are in fact civil acts.

This is a tricky argument. In general, the government may pass laws that accommodate religious dissenters. The federal Religious Freedom Restoration Act is a good example. It requires religious exemptions from any neutral, generally applicable federal law provided that the law burdens the religious believer and is not narrowly tailored to avoid doing so. RFRA is consistent with the Constitution. Supporters of the North Carolina law would no doubt say that it simply provides an analogous sort of exemption for the magistrate.

But there are two important differences between the North Carolina law and RFRA. One is that RFRA applies to private individuals, not government employees. When performing their official functions, North Carolina magistrates should be treated as “neither Jew nor Gentile, neither Catholic nor agnostic,” to quote Justice Felix Frankfurter. A law that allows government officials to avoid their official duties for religious reasons has the effect of establishing the officials’ religion as the law of the state.

The second crucial difference is that the North Carolina law doesn’t provide for any balancing test in which the interests of the couple seeking to be married or the government’s interest in equality are weighed against those of the public official.

In a 1985 case called Thornton v. Caldor, the Supreme Court struck down a Connecticut law that created an unqualified right for Sabbath observers not to be disciplined for refusing to work on whatever day they considered their Sabbath. The law said that “an employee's refusal to work on his Sabbath shall not constitute grounds for his dismissal.”

The court, in an opinion by then-Chief Justice Warren Burger, struck down the law as violating the establishment clause. Burger reasoned that it was an unconstitutional advancement of religion to treat the interests of religious Sabbath observers as absolute, without considering in any way the countervailing interests of employers. “This unyielding weighting in favor of Sabbath observers over all other interests contravenes a fundamental principle of the Religion Clauses,” he wrote.

Applying the logic of the Caldor case, the North Carolina law would be unconstitutional because it does not provide any balancing test. Indeed, the North Carolina law is pretty clearly much worse than the Connecticut law struck down in the Caldor case.

Think about it: If there were a balancing test, could a magistrate’s religious beliefs trump the public interest in assuring that all citizens may be married on terms of equality as required by the U.S. Constitution? I think the answer would pretty certainly be no.

Technically, the Caldor decision is good law. But it isn’t a highly visible precedent -- and it’s possible the court might dismiss it away rather than following it. In my First Amendment course, I’ve never assigned the case. Even though I’ve always found it fascinating, it hasn’t been central enough to the history of constitutional doctrine for me to justify making it required reading. And a lot has changed about the Supreme Court’s establishment clause doctrine since 1985.

Nevertheless, I think the establishment clause argument is probably the strongest reason to strike down the North Carolina law. Yes, equal protection is the primary reason for a constitutional right to gay marriage, and the law shouldn’t make gay marriage more difficult. But the right to individual religious liberty is also important. The reason it doesn’t apply here is simply that government officials need to follow the law and treat everybody equally -- not allow their own personal religious views to prevail.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor on this story:
Stacey Shick at sshick@bloomberg.net