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Issuance of Marriage Licenses to Individuals of Same Gender; Penalties

Reply to: Gerald K. Robbins 9001 Mail Service Center Raleigh, North Carolina 27699-9001 Tel: (919)716-6850

March 29, 2004

Mr. Willie L. Covington Register of Deeds Durham County Courthouse 200 E. Main Street, Ground Floor Durham, NC 27701

Re: Advisory Opinion: Issuance of Marriage Licenses to Individuals of Same Gender; Penalties

Dear Mr. Covington:

You have asked whether in your capacity as Register of Deeds for Durham County you may issue a marriage license to individuals of the same gender and if the issuance of a marriage license to same-sex couples could subject you to the penalties prescribed in N.C. Gen. Stat. §161-27.

North Carolina law provides that a “valid and sufficient marriage is created by the consent of a male and female person who may lawfully marry.” N.C. Gen. Stat. §51-1. The requirements imposed for a valid marriage may be created or abrogated by the General Assembly. Cranfill v. Baity, 91 N.C. 293 (1884). The General Assembly has established the public policy of this State by declaring marriages between persons of the same gender to be invalid. “Marriages, whether created by common law, contracted, or performed outside North Carolina, between individuals of the same gender are not valid in North Carolina.” N.C. Gen. Stat. §51-1.2.

Persons desiring to be married are required to first present to the person officiating at the wedding a marriage license “signed by the register of deeds of the county in which the marriage license was issued.” N.C. Gen. Stat. §51-6. The duties of the register of deeds include issuing a marriage license to any two persons who “are authorized to be married in accordance with the laws of this State.” N.C. Gen. Stat. §51-8. A register of deeds may only issue a license after a “reasonable inquiry” that there is no “lawful impediment” to the marriage. N.C. Gen. Stat. §51-17. “The register is charged to be cautious and to scrutinize the application; it must appear probable to him, upon reasonable inquiry when he has not personal knowledge of the parties, that the license may and ought to be issued.” Gray v. Lentz, 173 N.C. 346, 350-351, 91 S.E. 1024, 1026 (1917).

Willie L. Covington Page 2 March 29, 2004

This inquiry must be done with the solemnity required of all legal acts and not performed as a matter of form. Julian v. Daniels, 175 N.C. 549, 95 S.E. 907 (1918).

The required reasonable inquiry by the register of deeds should reveal that the applicants have a legal impediment to a lawful marriage; i.e., they are of the same gender. There being a legal impediment no marriage license should issue. Joyner v. Harris, 157 N.C. 295, 72 S.E. 970 (1911)(Sections 51-8 and 51-17 are to be read in para materia).

N.C. Gen. Stat. §51-17 provides for a forfeiture in the event that the register of deeds issues a marriage license contrary to the law as follows:

Every register of deeds who knowingly or without reasonable inquiry, personally or by deputy, issues a license for the marriage of any two persons to which there is any lawful impediment, or where either of the persons is under the age of 18 years, without the consent required by law, shall forfeit and pay two hundred dollars ($200.00) to any parent, guardian, or other person standing in loco parentis, who sues for the same.

In addition, N.C. Gen. Stat. §161-27 provides that “[i]f any register of deeds fails to perform any of the duties imposed or authorized by law, he shall be guilty of a Class 1 misdemeanor, and he shall be removed from office.”

The Supreme Court, in State v. Snuggs, 85 N.C. 541 (1881), addressed whether the register of deeds could be indicted for issuing a marriage license contrary to the existing marriage laws requiring the consent of the female’s father. The Supreme Court held that only if the register of deeds’ illegal act was done in bad faith could he be criminally liable. Otherwise, he was only civilly liable.

In conclusion, a register of deeds would violate North Carolina law in issuing a marriage license to persons of the same gender. If, in issuing such a license, the register of deeds operates in bad faith he may subject himself to the penalties provided in N.C. Gen. Stat. §161-27.

Do not hesitate to contact us if we can be of such further assistance.

Very truly yours,

Ann Reed Senior Deputy Attorney General

Gerald K. Robbins Special Deputy Attorney General