Rather than allow such an obvious solution to suffice, Republicans are rushing to turn the issue into a social conservative rallying point in the run-up to the 2016 elections in North Carolina (a state where voters' opinions are evenly divided, with 44% approving of same sex marriage and 47% disapproving, with a 3% margin of error).
Phil Berger (R), president pro tem of the state senate and SB2's primary sponsor, casts his argument for the bill in First Amendment terms:
“If we’re not about holding up the rights guaranteed by our constitution in this body, then all the other stuff eventually is not worth very much,” he said. “We’re not saying that the First Amendment outweighs any other right that might exist. We’re saying there should be an accommodation when there is a conflict.”

SB2 would permit a magistrate with a "sincerely held religious objection" to recuse him- or herself from performing weddings by the simple act of so notifying the chief district court judge. No examination of the sincerity of that belief (such as would-be conscientious objectors face under Selective Service rules) would be required. Neither would the recusing magistrate be required to state exactly what it is he objects to: same-sex marriage (which many fundamentalist Christian denominations hold to be a sin), mixed-race marriage (regarding which the Fundamentalist Church of Jesus Christ of Latter Day Saints' prophet, Warren Jeffs, proclaimed "If you marry a person who has connections with a Negro, you would become cursed"), the re-marriage of a divorcee (which the Catholic Church holds to be a sin), the marriage of a Christian and a Jew (sometimes frowned upon by both religions), marriage between cousins (legal in North Carolina but proscribed by the Catholic church), or what have you. Proponents of the bill argue that it is therefore not discriminatory, as it does not target a specific class of persons. As well, they continue, the law is not discriminatory because recusal would bar the magistrate from performing any marriages for a period of six months...barring him from easily cherry-picking the marriages he will and will not perform.
In an further paroxysm of zeal for 'fair play,' SB2 goes even further, permitting the reinstatement of any magistrate who resigned his position following the Federal court decision rendering same-sex marriage legal in North Carolina, with no loss of service time for purposes of determining the magistrate's eligibility to collect a pension.
Judging by news reports, outnumbered opponents of SB2 offered all the right arguments during debate on the bill:
They compare the bill to the “separate but equal” accommodations of the South’s segregationist past.
[Senator Jeff] Tarte said [...] "magistrates must follow the instructions every jury receives: Uphold the law – even if you don’t agree with it."
“Can you not see that this bill takes us down a road that we must not go?” said Sen. Josh Stein, a Raleigh Democrat.
Yet however well-reasoned such arguments may be, they nonetheless completely miss the central point. Obviously, SB2 isn't legislation so much as it is political theater - red meat thrown to Republican legislators' extremist base in an effort to shore up their increasingly shaky prospects of retaining control in 2016. One may argue the inhumanity of this legislation - or its illogic, or its possible unconstitutionality - till the cows come home...but without effect in today's supermajority-Republican legislature. So why even bother?
Immoderate as SB2 obviously is, still its greatest flaw isn't its inhumanity, but rather its obvious irrationality. Any judge who avails himself of SB2's recusal provision would be a judge who has gone on record as unable to faithfully perform the duties of his office. And none make this point more forcefully than do members of the group some have called 'The NC Hate Eight' - those magistrates who walked away from their jobs rather than fulfill their legal obligations. According to former Gaston County magistrate William Stevenson:
There comes a point where one has to choose between following the commands of the Lord and following the commands of the government.
Likewise, former Swain County magistrate, Gilbert Breedlove:
There are many who won’t let their personal beliefs interfere with their jobs. In this case, I had no option.
Or Tommy Holland, former Graham County magistrate:
When you’re a magistrate, you take the oath to uphold the law of North Carolina. It’s up to you to honor it. I just couldn’t.
While SB2's marriage recusal provision may do much to relieve the doctrinal trauma currently suffered by discriminating magistrates such as Stevenson, Breedlove and Holland, still it will do nothing to resolve the many additional ongoing conflicts between such magistrates' spiritual beliefs and their judicial responsibilities, wherever the latter involve married persons. Such other potentially marriage-related duties of NC magistrates are numerous, including:
  • Serving as child support hearing officers
  • Assigning monetary allowances to surviving spouses and children of intestate decedents
  • Taking acknowledgment of a written contract or separation agreement between husband and wife
  • Issuing domestic violence protection orders

It is, to say the very least, unclear how a magistrate who has registered his religiously-based discrimination regarding certain unspecified classes of married persons could possibly diligently perform, without bias, such responsibilities as these - to say nothing of any otherproceeding in which the magistrate faces a married person coming before the court (who might, after all, be a member of the particular class of married persons against which the magistrate lawfully discriminates). We already know, from their own words, that (for example) Magistrate Stevenson cannot reliably follow the lawful commands of government, that Magistrate Breedlove has no choice but to let his personal beliefs interfere with his job, and that Magistrate Holland cannot honor an oath to uphold the laws of North Carolina, at least where certain classes of married persons are concerned. And we salute these magistrates for thus moving on to other careers. Because while such beliefs might qualify a magistrate to preside over a sharia court, they would clearly disqualify him from serving the Blind Justice that America's sons and daughters have fought and died to preserve these past two hundred years and more.
Next up, we can expect to see SB2 taken up by the state House of Representatives (where Republicans outnumber Democrats, 76 to 46). Invited to comment for this report, state Representative Graig Meyer (D, Durham and Orange Counties) stated, "Even the Republicans know that SB2 is unconstitutional. They propose bills like this to flame the fears that motivate their base, and to make people pay attention to another social issues debate instead of their disastrous economic plan. We don’t have to fall for it. Even while we fight their discriminatory proposal, we must not let this distract our attention from other issues that matter to North Carolinians."
What You Can Do:
As grim as this specter of religious persecution cloaked in a cassock and brandishing a Bible certainly is, and as foreordained as the passage of SB2 into law may be, still this battle is not over. Indeed it has only just begun. With your help, we will win - if not tomorrow in the General Assembly, then in 2016 at the polls.
First: recognize that dispassionately debating SB2 on its 'merits' is fruitless. Of course it's insane. North Carolinians of good will (and there are many of us) already get this, while those of black heart simply don't care (or even embrace the insanity). SB2 isn't primarily intended as law - good, bad, or otherwise. Rather, it is meant to be political theater, to set a precedent. And the way to fight repugnant political theater is to work it.
Second: if you are a North Carolinian, call or write your state House member, urging him or her not only to vote against SB2 when it comes before the House, but much more importantly to offer amendments to the bill. Tacking on amendments will force a floor debate. And a floor debate, in turn, will force individual supporters to own their positions on this law before reporters, a gallery packed (I can assure you) with protesters, and the world. North Carolina is not quite (yet) Wisconsin, where Republican legislators take overweening pride in their parliamentary perversions. Here, GOP legislators still feel the need to mealy-mouth their intentions, claiming the high moral ground of "religious freedom" and "First Amendment rights." Amendments to the bill will give our right-thinking members of the House the opportunity to call SB2's proponents out on these perverse arguments.
What sort of amendments would be appropriate? Personally, I favor one which would require magistrates who exercise their SB2-granted freedom to discriminate to likewise accept theresponsibility this should entail. Given that (as I outline above) under SB2's current language we would not know which class(es) of persons a recusing magistrate chooses to discriminate against with respect to marriage - gays, blacks, Jews, divorced persons - and given that a magistrate's duties include many others involving married persons (some of whom will be members of the class(es) he discriminates against), an amended SB2 should require a recusing magistrate to (1) publicly declare which class of married persons he is religiously conflicted against, and (2) require him to recuse himself in all matters in which one or more parties may be members of that class. Such an amendment might be named An Amendment to Require Magistrates to Recuse Themselves From All Proceedings Concerning Married Persons Due to Sincerely Held Religious Objection. Such an amendment would have the merit not only of being the right thing to do (given the circumstances), but - more importantly - would open the floor debate to the topics of bias, discrimination, and the thus-far ignored point that SB2 discriminates not only against gays, but likewise against all unfavored minorities, black and white, gay and straight alike. Make Republicans own this. SB2 isn't (just) an anti-gay bill. It's an anti-people bill.
Third: If you are a resident of state Senate district 21 (Cumberland and Hoke) or 38 (Mecklenburg), call or write your state Senator (Ben Clark or Joel Ford, respectively - both of whom voted in favor of SB2, and both of whom are African American Democrats serving majority black districts) and politely ask them what part of NC NAACP president Rev. William Barber's fusion politics strategy they do not understand. Either we all hang together, or we will all hang separately.
Fourth: Whether or not you are a North Carolinian, please consider donating to Equality NC and the NC NAACP, two organizations that have long been leading the fight for equal protection under the law in the Tarheel State. Our battle here is not North Carolina's alone. We are merely the front line. Unless we stop this assault here (most likely in Federal court) yourstate may well be the next to face this specter of religiously aided and legally abetted persecution.
And finally: be of good cheer. In SB2, Republicans have handed Democrats a potent tool - the kind of issue that can draw younger voters, with their still acute sense of decency and fair play, to the polls in 2016. Democrats outnumber Republicans in North Carolina, and when younger Democrats show up at the polls, Dems win...and when they don't we lose. As a progressive Christian, I am all too painfully aware that many young liberals are simply fed up with religion...particularly as it manifests itself in sectarian meddling in secular society. SB2 - the first salvo in a New Inquisition - is exactly the kind of issue that can bring these young fair-weather voters to the polls in droves.
Let's work it.
To keep updated on this developing issue, and to learn what more specific actions you can take to work it in the run-up to the 2016 election, ♥Follow me on Daily Kos. I will report regularly on this and related stories - and what good folk are doing to work them to restore sanity - as events develop.