North Carolina Religious Exemption Law Unconstitutional, Analysis Shows
Columbia Law School Professor Katherine Franke, Director of the Public Rights/Private Conscience Project, Says Magistrates Who Refuse to Perform Same-Sex Marriages Are Violating the U.S. Constitution
New York, September 11, 2015—North Carolina’s religious exemption law, under which magistrates in a northwest county of the state are refusing to perform same-sex marriages, is unconstitutional, according to Columbia Law School Professor Katherine Franke, faculty director of the Public Rights/Private Conscience Project.
“Clearly the costs of public officials’ religious beliefs are being shifted to the citizens of North Carolina who have limited access to public offices responsible for issuing marriage licenses,” said Franke. “The North Carolina law, on its face and as invoked by these magistrates, builds a preference for religion into the law itself by granting the religious views of some public officials special protection.”
The requested exemption extends beyond the legitimate accommodation of a significant burden on religious belief or practice, Franke noted.
“The North Carolina law carves out a much larger religion-based exemption for public officials who seek to be exempt from issuing marriage licenses to same-sex couples than is allowed by state or federal law protecting religious liberty,” said Kara Loewentheil, director of the Public Rights/Private Conscience Project. “Indeed, the law creates a violation of the Constitution's Establishment Clause. The First Amendment to the U.S. Constitution protects religious liberty but also requires that states exercise authority in a religiously neutral fashion. This means that civil power must be exercised in a manner neutral to religion and that government should not prefer one religion to another.
The Public Rights/Private Conscience Project has prepared an analysis of the North Carolina law under which the magistrates have asserted a right to refuse to issue marriage licenses to same-sex couples.
“Time and again the Court has found an Establishment Clause violation where the state protects believers at the expense of others in secular environments,” the analysis states.