Two western North Carolina magistrates who resigned in 2014 to avoid performing same-sex marriage ceremonies will collect more than $1.3 million in back pay and other damages, thanks to an order this month from an Equal Employment Opportunity Commission judge.
Administrative Law Judge Thomas McCarthy’s July 17 final order follows a 10-year legal battle. McCarthy also awarded more than $450,000 for a decade of lawyers’ fees in the case.
The 4th US Circuit Court of Appeals threw out North Carolina’s ban on same-sex marriages in October 2014. John Smith, director of the state Administrative Office of the Courts, issued a memorandum after the decision calling on magistrates to begin performing same-sex marriages immediately.
Magistrates Gilbert Breedlove in Swain County and Thomas Holland in Graham County raised concerns about the conflict between the AOC’s instructions and their religious beliefs. Unable to identify a compromise that would allow them to avoid taking part in same-sex marriage ceremonies, they resigned from their jobs.
By spring 2015, Breedlove and Holland filed religious discrimination complaints with the EEOC under Title VII of the Civil Rights Act.
“Over the ensuing eight-year period, Complainants’ allegations endured protracted and, at times, circuitous cycles of dismissals, rescissions and reconsiderations, and further dismissals,” with McCarthy taking over the case in 2023, he wrote in June.
His order awards Breedlove more than $655,000 and Holland more than $680,000. The order also calls for Holland’s “immediate reinstatement” as a magistrate in Graham County.
“Complainants Breedlove and Holland have met their burden to establish their respective claims of religious discrimination against Respondents in their official capacities for failure to accommodate their respective religious beliefs and by constructively discharging them,:” McCarthy wrote. “Respondents failed to meet their countervailing burden to demonstrate that an accommodation from the employment requirement to perform same-sex marriage irrespective of religious objections would have imposed an undue burden.”
Though both magistrates resigned, they are able to collect back pay under the legal claim of “constructive discharge.” A plaintiff makes that claim when he quits a job after an employer creates a hostile or intolerable work environment.
“Complainants in this case have not ‘sought to leave at the first sign of dissatisfaction,’ but resigned only after their supervisors affirmed the … warning that North Carolina 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,’ and that ‘[i]f 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,’” McCarthy wrote.
“Complainants here were not merely given a notice of intent to commence a process leading to discharge. They were instead told that a single refusal to perform a same-sex marriage ceremony would immediately expose a magistrate to suspension and potential criminal proceedings,” the judge added. “In fact, when asked on direct examination whether he considered staying as a magistrate, refusing to perform a same-sex marriage, and seeing what would happen next, Breedlove responded: ‘No sir. I wasn’t willing to face criminal liability or civil liability. … I would have been charged with a crime and that’s something I just couldn’t do. I mean, that would destroy my career.’”
In 2015, seven months after the two magistrates’ resignations, state policy changed to accommodate magistrates’ religious concerns about performing same-sex marriage ceremonies. That change did not restore Breedlove or Holland to their prior jobs.
“The Administrative Office of the Courts handled the situation poorly back in 2014, and we’re grateful that the judge recognized that the state had forced these magistrates to resign when they refused to violate their Christian beliefs,” lawyer Craig Schauer said in an email Tuesday to Carolina Journal. “They’ve been waiting over a decade for this ruling. Now that we have it, we are optimistic the current leadership at the Administrative Office of the Courts will make things right for our clients.”
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