NC gay marriage opt-out written to avoid Kentucky-style impasse

But officials said Thursday that the law is different from what's on the books in Kentucky, where a clerk who defied court orders to issue marriage licenses to same-sex couples has been jailed, and they don't foresee a similar standoff occurring in North Carolina.

U.S. District Judge David Bunning said he had no choice but to jail Rowan County (Ky.) Clerk Kim Davis for contempt after she insisted that her "conscience will not allow" her to follow federal court rulings on gay marriage.

North Carolina's law doesn't cover elected officials, only magistrates appointed by county court clerks and assistants to the elected register of deeds in each county. It also requires that someone must be made available to issue a marriage license or preside over a wedding if someone steps aside for religious reasons, so no one would be denied service, as has been the case in Kentucky.

"We provided an opportunity for folks who have strongly held religious views with objections to opt out, but we also provided a backstop," said Senate President Pro Tem Phil Berger, who sponsored the legislation. "It’s keeping folks from having to choose between their job and their religious beliefs. I think that’s important."

Still, Sarah Preston, acting executive director of the North Carolina chapter of the American Civil Liberties Union, said the laws in North Carolina and Kentucky both amount to "government officials refusing to do part of their job."

"The general public expects fair and equal treatment from their government employees, and when government employees are not able to do that, it causes a lot of trouble," Preston said. "That’s what happened in Kentucky, and that’s what we will see here if the same thing happens."

So far, about 5 percent of the 670 magistrates statewide have recused themselves from marriage duties because of their religious beliefs, according to the Administrative Office of the Courts. No figures were available regarding any register of deeds employees.

Under North Carolina law, anyone who recuses himself or herself must step aside from all marriages, not just same-sex ones, for at least six months.

"You definitely could have the potential that somebody walks in, and right in that moment, the magistrate just sort of stands up and says, 'I don’t want to marry this couple. I recuse,' and there’s nothing that prevents that," Preston said.

Gov. Pat McCrory vetoed the bill, arguing that public employees shouldn't be allowed to pick and choose what duties of their office to carry out. Lawmakers then overrode the veto.

Berger said that he has heard of no problems with law since it took effect.

"I think the law is working very well," he said.

Preston said the Kentucky case won't directly affect North Carolina because it's in a different federal district and the U.S. Supreme Court hasn't issued any ruling on it, but she said it provides a good precedent if any couple in North Carolina is ever turned away.