North Carolina Judges: Instead of Stepping Down for Refusing to Perform Gay Marriage, Should Stay On the Bench

Kristi Burton Brown is a pro-life attorney, volunteering for Life Legal Defense Foundation and also as an allied attorney for Alliance Defending Freedom.
Kristi Burton Brown is a pro-life attorney, volunteering for Life Legal Defense Foundation and also as an allied attorney for Alliance Defending Freedom.

Over the weekend, many Americans became aware of the now six North Carolina judges who have resigned after being told they will be forced to conduct marriage ceremonies for same-sex couples.

For one minute, let's not debate same-sex marriage itself. Let's go deeper.

These judges stepped down from their benches "because they do not want to go against their Christian faith." I, for one, hold these six judges in high admiration. We Christians should be so bold as to willingly lose our jobs – or anything else – for the sake of Christ.

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With Peter and the apostles, these judges replied, "We must obey God rather than men!"

And that's exactly where the deeper problem comes in. Government officials – including judges – should not be forced to choose between their religious convictions and their jobs. Our nation, and indeed, our Constitution, recognizes conscience rights in the First Amendment.

As recently as this summer, the U.S. Supreme Court recognized the freedom of conscience that Americans have in the much-debated Hobby Lobby case. In this case, the Green family was allowed to follow their consciences and their religious convictions in refusing to pay for abortifacient birth control for Hobby Lobby's employees.

Freedom of conscience recognizes that even if an individual has decided to enter the corporate world, he is still an individual with First Amendment rights. Even if a medical professional – like a nurse or a pharmacist – has decided to enter the health care world, she is still an individual with First Amendment rights.

And in the same way, even if an individual has decided to enter the government world and become a judge, he should still be recognized as an individual with First Amendment rights. These rights include the rights to freedom of religion and freedom of conscience.

While I deeply admire the conviction and bravery of these six Southern judges, and have no doubt they did what they believed best, I cannot help but hope that other judges will stay put, while still refusing to perform the marriage ceremonies.

If liberal, anti-Christian activists come to the realization that they can force good, moral, Christian judges to resign, they have no reason not to develop into a full-out pack of attack wolves. What is to stop them from specifically targeting conservative judges who are known for their religious convictions?

Christians have long been told to get out of politics and government; that it's a dirty world with no place for Christians. And yet, nothing could be further from the truth. We Christians cannot allow others to control the political and government realms. We must be active, we must be bold, and whenever possible, we must stay put.

We live in America. And in America, not even the government has the power to tell us to check our religious convictions at the door – even if that door is the door to a judicial chamber. Judges are judges, yes. But they remain people with rights that cannot be unlawfully stripped from them.

Think with me, for a moment, beyond the North Carolina six. If government is the barrier to an exercise of religious freedom and the rights of conscience, what is to stop the government, one day, from mandating doctors who are paid with Medicaid funds to perform abortions, against their religious convictions? If government has the unwieldy power to force actions that go against basic rights, it has become too dangerous and too big. Government officials are in danger of being forced to bring in the era of the robot state, in which, to participate in a government position – however that is defined – one must blindly concede to all commands of the government.

And, no, we're not there yet. But these situations require much thought, strategy, and forward thinking. We are a peaceful nation, and we must remain so. Yet a free people must always be willing to peacefully resist when their basic liberties are threatened.

My hope is that other judges, faced with the decision of the North Carolina six, will consider recusing themselves from same-sex marriage ceremonies. Judges are allowed to recuse themselves from judicial proceedings in which they have "a personal bias or prejudice concerning a party." And while this allowance is made to prevent unfair rulings against the parties, perhaps it is time for judges to attempt to use this allowance to prevent an unfair violation of their own religious rights.

In the Hobby Lobby case, the Supreme Court found that the government did not meet the "least restrictive means" test in attempting to force Hobby Lobby to pay for chemical abortions. In the same way, it is highly doubtful that forcing every single judge – despite his religious convictions – to perform same-sex marriages is the "least restrictive means." There are no doubt plenty of judges willing to perform these ceremonies, and it should not be forced on those who are unwilling. Religiously convicted judges should be allowed to recuse themselves.

While I am an attorney, I do not represent these judges, and my comments here are not the comments of Alliance Defending Freedom or any other legal organization I volunteer for. However, I would urge any other judges thinking about stepping down to stay put for a little while longer and consider every option. I would urge them to contact Alliance Defending Freedom, the American Center for Law and Justice, Liberty Counsel, or the Becket Fund for Religious Liberty and talk through all their options with an experienced, Christian, First Amendment attorney.

• Should they attempt to recuse themselves?
• Should they stay put on the bench, but refuse to follow the new directives being forced on them?
• Should they resign and sue for a violation of their First Amendment Rights?
• Should the six who have already resigned consider a suit of their own?

I cannot personally answer all these questions, but I do know that accepting the loss of these judges and more like them is not the answer America needs.

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