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Anti-LGBTQ Accommodation Law Stands in North Carolina, For Now

Imani Gandy

The plaintiffs were found to lack standing to challenge the religious imposition law as taxpayers.

The Fourth Circuit Court of Appeals dismissed a lawsuit challenging a North Carolina law that allows public officials to recuse themselves from performing same-sex marriages for religious reasons, arguing that the plaintiffs lack standing.

“The outcome here is in no way a comment on same-sex marriage as a matter of social policy,” wrote Judge J. Harvie Wilkinson for the unanimous three-judge panel.

“The case before us is far more technicalwhether plaintiffs, simply by virtue of their status of state taxpayers, have alleged a personal, particularized injury for the purposes of Article III standing. Based on a century of Supreme Court precedent, we conclude that they have not.”

The lawsuit, Ansley v. Warren, was filed by a group of three same-sex couples, all married or engaged. None of them claim North Carolina has interfered with their right to get married. Rather, they are challenging the religious exemption as taxpayers opposed to North Carolina’s alleged spending of public funds in aid of religion.

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Plaintiffs allege that the magistrate judges in McDowell County have all recused themselves from officiating same-sex marriages. In order to make up for that shortfall, state lawmakers passed a law that would allow the transport of magistrates from another county to perform marriages in McDowell County.

SB 2 directs the North Carolina Administrative Office of the Courts (NCAOC) to spend public funds to transport magistrates from Rutherford County to perform marriages in McDowell County and to transport magistrates from McDowell County to perform other judicial duties. The law also directs the NCAOC to make a one-time payment into the state retirement system on behalf of each magistrate who is reappointed.

Plaintiffs allege that this expenditure of public funds is in aid of religion and therefore a violation of the Establishment Clause. The district court and court of appeals disagreed.

Because U.S. Supreme Court jurisprudence regarding taxpayer standing is strict—generally taxpayers do not have the right to sue their government with complaints about how taxpayer funds are spent—U.S. District Court Judge Max O. Cogburn Jr. threw out the case in September 2016.

“As Plaintiffs have made no allegations of an ‘injury in fact’ that might otherwise allow them to assert standing in this case, Plaintiffs have failed to meet their burden of showing they have standing to bring Due Process and Equal Protection claims,” Cogburn wrote.

“Accordingly, because Plaintiffs lack standing to bring their Fourteenth Amendment challenges, the court lacks subject matter jurisdiction over them and this action must be dismissed,” Cogburn continued.

Standing is a judicial principle that requires a plaintiff to have suffered a concrete injury traceable to the conduct that the plaintiff is challenging in court and that can be remedied by a favorable judicial decision.

Because the plaintiffs did not allege that North Carolina’s law had prevented them from getting married—all three couples were able to obtain marriage licenses—the Court ruled they had not suffered any injury.

But the plaintiffs argued that they still had standing.

“Senate Bill 2 expressly declares that their religious beliefs are superior to their oath of judicial office to uphold and support the federal constitution. And the law spends public money to advance those religious beliefs. That is a straightforward violation of the First Amendment,” said Luke Largess, lead counsel for the plaintiffs, according to the Campaign for Southern Equality’s website.

The plaintiffs’ case relied on Flast v. Cohen, a 1968 Supreme Court ruling that allows taxpayers to mount an Establishment Clause challenge to government spending used to support a religion. In Flast, a group of taxpayers challenged a federal law that permitted government funds to be used to purchase secular textbooks for use in religious schools. Florence Flast argued that the use of taxpayer money in that manner was a violation of the Establishment Clause.

Plaintiffs argued that a similar scenario was at play in Ansleypublic funds being used to accommodate the religious intolerance of magistrate judges in McDowell Countybut the Fourth Circuit disagreed. The court ruled that under Flast, taxpayers only have standing to challenge spending that involves specific legislative appropriations, which wasn’t the case here.

“As we have noted, S.B. 2 is not an appropriations bill but an attempt to accommodate the employees’ rights of religious conscience with the right of same-sex couples to marry,” the panel concluded.

The appeals court noted that the case “presents one of the most problematic terrains for finding standing—either under general rules or the Flast exception.” General standing rules require an injury in fact, and the appeals court found no such injury in this case. In addition, the court found that the essential ingredients of a Flast claim were missing—there was no specific legislative appropriation or subsidy of a sectarian entity.

“Plaintiffs seek to characterize these expenditures as the ‘lifeblood’ of the statute,” Wilkinson wrote for the panel, “but the inescapable fact is that S.B. 2 is not a spending bill.”

“What we have instead are ‘incidental expenditure[s] of tax funds in the administration of an essentially regulatory statute’ that alters the scope of magistrate duties in performing marriages. As with any regulatory measure, some level of expenditure is necessary to carry out the goals of the program, and the Supreme Court has never found such ancillary spending to provide an adequate basis for standing.”

Wilkinson pointed out that none of the money would go to religious institutions; the funds were simply being shuffled around within the government.

The Supreme Court has repeatedly ruled that the taxpayer’s interest in making sure her tax dollars are spent in accordance with the Constitution is too attenuated and generalized to confer standing. There are a few exceptions—for instance, when a specific legislative appropriation is used to subsidize a sectarian entity, as in Flast—but generally citizens do not have standing to challenge how their taxpayer dollars are used.

Former Gov. Pat McCrory (R) vetoed SB 2 in May 2015, despite his opposition to same-sex marriage. He argued that public officials need to uphold the law regardless of their personal religious beliefs. The Republican-controlled legislature overrode his veto in June 2015.

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