Sad Signals on Tolerance, Rule of Law

Gov. Pat McCrory tried to warn his fellow Republicans who call the tunes in the General Assembly. The rule of law was at stake, McCrory said, and the state would be asking for trouble if it let public officials pick and choose which of their duties they will carry out. His veto stamp thumped down on Senate Bill 2.

The governor to his credit wasn’t swayed by the notion that an official should be able to avoid performing a duty because of a “sincerely held religious objection.” Granting that leeway is the thrust of S.B. 2, now the law of North Carolina after McCrory’s veto was overridden first by the state Senate, then on June 11 by the House.

The new law’s sponsors cast it as a defense of religious liberty. What it really is, though, is a license for people on the public payroll to write their own rules – even if it means slamming the door in the faces of citizens they’re supposed to serve.

So North Carolina, which likes to boast of having been “First in Flight,” now puts itself in the running for another slogan: “First in Spite.”

Cloaked in cynicism and homophobia, S.B. 2 is a spiteful piece of work. The language doesn’t specify, but everyone knows that it’s targeted at gays and lesbians who might want to go down to the courthouse and get married in a civil ceremony conducted by a magistrate. It panders to those who regard same-sex marriage as some sort of abomination.

That’s a view that anyone is free to hold as a matter of religious belief (although as time goes by it seem to be shared by a dwindling number of people). But it shouldn’t serve as an excuse to deny same-sex couples the right to be married by an official whose duties include performing marriages.

The right to marry, after all, is one that most Americans enjoy, at least unless the U.S. Supreme Court – now considering the matter — says otherwise. To hinder that right as S.B. 2 does is to twist the First Amendment’s guarantee of the free exercise of religion into denial of equal protection under the law – a Constitutional no-no that’s sure to be cited when this statute faces its inevitable legal challenges.

The Senate’s most powerful figure, President Pro Tem Phil Berger of Eden, has been the driving force behind S.B. 2, brushing aside McCrory’s concerns. There was no doubt that Berger’s Republican troops would agree to override the governor’s May 28 veto. They did so on June 1 by a vote of 32-16.

Careful count, quick vote

On the House side, the situation was dicier. Republican Speaker Tim Moore put the override motion on the calendar but delayed calling a vote for several days until he figured it had a good chance to pass. Because the threshold for an override is three-fifths of the members present and voting, the motion needed 66 votes for approval. The margin was 69-41, with Republicans providing most of the support. Three GOP members voted to sustain the veto, and three Democrats supported the override.

Ten members had excused absences – six Republicans and four Democrats. It would be a stretch to say that if all had been present, the override might have failed. Still, Moore caught some members by surprise.

Republican Jon Hardister of Greensboro, who previously had voted against S.B. 2, told The News & Observer of Raleigh that he’d taken a leave of absence to deal with a personal issue and that he’d not been told the vote would be held on the morning of June 11. He took care not to complain: “The speaker said he would call the question when he thought the voters were there, and that is what happened.”

Democrats didn’t mind complaining about the vote’s timing and about Moore’s refusal to allow any debate except for a brief speech by Minority Leader Larry Hall of Durham. Presumably the Republicans didn’t want to have to listen to their Democratic colleagues rub it in that they were crosswise with the Republican in the governor’s office.

Beneath the leaves

The law does have some features that amount to fig leaves for its discriminatory impacts. For example, it requires counties to offer marriage services to all comers for at least 10 hours per week over three business days. That leaves open the question of how a county would comply if all its magistrates declared their unwillingness to officiate at same-sex ceremonies, or if all employees in registers of deeds office invoked their new privilege to refuse to issue marriage licenses to same-sex couples.

Perhaps those scenarios are unlikely, and in any case there typically would be work-arounds for folks determined to get married. But as McCrory pointed out, there’s a vital principle at stake, and the new law kicks it to the curb.

Public officials take oaths to uphold the Constitution, and that should entail treating all citizens equally. A magistrate or register of deeds is free to hold whatever religious beliefs he or she cares to hold, including opposition to gay marriage. But those beliefs should not entitle them to withhold their services from a subset of citizens. Critics logically ask, where might that permission to discriminate lead?

The Council of Churches opposed the state constitutional amendment that has sought to prohibit gay marriage – a restriction now in abeyance because of decisions in the federal courts. The Council, drawing on its own interpretation of Christian mandates, favors equal treatment in the exercise of basic rights. And it agrees with Gov. McCrory that S.B. 2 is flawed in letting certain public officials spurn their Constitutional duties. If a magistrate cannot in keeping with his or her religious views perform a same-sex marriage, then the appropriate way to resolve the conflict between duty and belief is to resign.

It’s becoming common in the world of business to support gay rights, and some prominent North Carolina business figures have warned that S.B. 2 will become a big turn-off in the competition for economic development. When only one other state – religiously conservative Utah – has gone as far as we have to impede gay marriages under a religious banner, that sends a blazing signal as to how the state’s top politicians have moved toward the conservative extreme in an area where they could well have chosen not to interfere.

Now the arguments over this latest twist in the gay rights drama will no doubt resurface in lawsuits brought by advocates of marriage equality. The state will be on the hook for all the costs of defending its rash attempt to suppress gay marriage in the name of religious freedom. Under different circumstances, it’s easy to imagine the conservatives who bulldozed S.B. 2 into law eyeing those expenses and saying, “What a waste!”