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A former and a current magistrate in North Carolina are suing the Administrative Office of the Courts arguing that an AOC directive would force them to solemnize the union of same-sex couples in violation of their constitutionally protected religious liberties and that it has placed their jobs in jeopardy. On February 11, former Moore County magistrate Charlie Smoak, along with a current magistrate who remained unnamed for fear of losing her job, filed the legal action against John W. Smith, Director of the AOC, and Susan Hicks, Clerk of Superior Court of Moore County.

The lawsuit highlights growing tensions that began when federal judges overturned North Carolina’s marriage laws last fall, including the state’s voter-approved Marriage Protection Amendment.

In October 2014, following actions by the federal courts that legally recognized same-sex unions in North Carolina, the AOC issued a memorandum stating, “all magistrates must treat same-sex marriages for which a marriage license has been issued by the Register of Deeds the same way that marriages between a man and a woman are scheduled and conducted.” It furthermore states, “if a magistrate refuses to discharge the duties of his or her office, including a refusal to perform a marriage of a same-sex couple, that refusal is grounds for suspension or removal from office…as well as, potential criminal charges….”

Both plaintiffs, who identify themselves as longstanding Christians, argue the AOC directive violates their “freedom of conscience, freedom of speech, due process and equal protection” by mandating that they “solemnize same-sex relationships as ‘marriages’ in violation of the laws and Constitution of North Carolina, and in contravention of Plaintiffs’ sincerely held, fundamental religious beliefs.”

Smoak also contends the Moore County Clerk of Court failed to recommend him for reappointment at the end of 2014 after he expressed concerns that his religious convictions would prevent him from solemnizing the union of same-sex couples. Smoak had previously served 10 years as a magistrate in Moore County.

The second plaintiff, identified in the complaint as “Jane Doe,” contends that if her identity is revealed, “it would likely subject her to retaliation in the form of being removed from office immediately or denied re-appointment solely because of her commitment to her religious beliefs, as is the case with Plaintiff Smoak.”

The complaint includes the following declarations:

• “Because the belief that marriage is ordained by God as the union of one man and one woman is at the core of how Plaintiffs order and direct their lives, fundamental to their identity, and integral to the Judeo-Christian values upon which the state and country were founded, Plaintiffs understand and sincerely believe that no human authority can re-define the institution that has existed for millennia in every human society.”

• “Plaintiffs cannot participate in solemnization of same-sex relationships at ‘weddings,’ because to do so would make them complicit in declaring as ‘marriage’ what cannot be a marriage. This would contravene not only the law of nature and nature’s God upon which the state and country were founded, but also the clearly-expressed will of the people of North Carolina whom Plaintiffs are pledged to serve, as well as Plaintiffs’ solemn duty to uphold public confidence in the judiciary.”

The lawsuit asks the Superior Court to declare the AOC directive unconstitutional, to enjoin the AOC from mandating that magistrates solemnize same-sex union as “marriages,” and to reinstate Charlie Smoak as a magistrate in Moore County.

Related Legislation
The lawsuit comes just two weeks after a bill was filed in the North Carolina General Assembly that would allow magistrates to recuse themselves from officiating marriages and allow Register of Deeds staff to recuse themselves from issuing marriage licenses. See our previous story about Senate Bill 2-Magistrates Recusal of Civil Ceremonies sponsored by Senate President Pro Tempore Phil Berger (R-Rockingham).