Ezel / AG Opinions / NC
NC NC AG Advisory Opinion (2004-03-28) 2004-03-28

In 2004, could a North Carolina register of deeds issue a marriage license to a same-sex couple, and what penalties would apply if they did?

Short answer: No, under the law as it stood in 2004. The NC AG advised that issuing a license to a same-sex couple would violate N.C.G.S. § 51-1.2, which then declared same-gender marriages invalid in NC. A register of deeds who issued the license could face a $200 civil forfeiture under § 51-17 and, if acting in bad faith, criminal penalties under § 161-27. This opinion was effectively superseded by Obergefell v. Hodges, 576 U.S. 644 (2015), which required all states to issue marriage licenses to same-sex couples.
Currency note: this opinion is from 2004
Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: This is an official North Carolina Attorney General advisory opinion from 2004. The legal conclusion has been superseded by Obergefell v. Hodges, 576 U.S. 644 (2015). This page is preserved as historical research material only and is not legal advice. Consult a licensed North Carolina attorney for current law.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official AG opinion. The original opinion (linked at the bottom of this page) is the authoritative source for any reliance.

Plain-English summary

Durham County Register of Deeds Willie Covington asked the AG whether he could issue marriage licenses to same-sex couples and, if he refused or issued one anyway, what penalties applied. The AG's answer, under the NC law in effect in March 2004, was that he could not.

The AG walked through five statutory provisions:

  • N.C.G.S. § 51-1 defined a "valid and sufficient marriage" as one created by "the consent of a male and female person who may lawfully marry."
  • N.C.G.S. § 51-1.2 declared that "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.G.S. § 51-6 required the marriage license to be signed by the register of deeds.
  • N.C.G.S. § 51-8 limited the register's duty to issue licenses to persons "authorized to be married in accordance with the laws of this State."
  • N.C.G.S. § 51-17 required a "reasonable inquiry" by the register before issuing a license, to check for any "lawful impediment."

Reading these together, the AG concluded that same-gender status was a "lawful impediment" to marriage in NC, and the register of deeds had a statutory duty to deny the license.

On penalties, the AG identified two layers:

  1. Civil forfeiture, § 51-17. A register who knowingly or without reasonable inquiry issues a license to a couple with a lawful impediment forfeits $200, recoverable in a civil suit by a parent or guardian.
  2. Criminal misdemeanor, § 161-27. A register who fails to perform statutory duties is guilty of a Class 1 misdemeanor and must be removed from office. But the AG applied State v. Snuggs, 85 N.C. 541 (1881), to limit criminal liability to bad-faith conduct. A register acting in good faith would not face criminal liability, only civil forfeiture.

The opinion is signed by Ann Reed (Senior Deputy AG) and Gerald K. Robbins (Special Deputy AG).

Currency note

This opinion was issued in 2004. It has been superseded by Obergefell v. Hodges, 576 U.S. 644 (2015), which held that the Fourteenth Amendment requires all states to license marriages between same-sex couples on the same terms as opposite-sex couples. The North Carolina statutes cited in this opinion (§§ 51-1, 51-1.2) are unconstitutional to the extent they bar same-sex marriage. Treat this page as historical context only, not current law.

The 2004 opinion is preserved here for legal-history and research value. It reflects the state of NC marriage law before Lawrence v. Texas fully matured into a federal constitutional rule and a decade before the federal courts struck down NC's marriage statutes and Amendment One (2012). Anyone serving as a register of deeds in 2026 must issue marriage licenses to same-sex couples on the same terms as opposite-sex couples.

Common questions

Q: Why is this opinion still on the NCDOJ website?
A: It is part of the NCDOJ's archive of opinions issued from 2002 to 2010. The archive preserves the office's historical work product without scrubbing superseded positions. That choice is consistent with how other state AG offices and federal agencies maintain their opinion archives.

Q: When did NC's same-sex marriage ban become unenforceable?
A: The federal courts struck down NC's ban in October 2014. The Supreme Court's 2015 decision in Obergefell v. Hodges settled the question nationwide.

Q: What was the legal landscape around AG opinions like this in 2004?
A: In 2004, no state recognized same-sex marriage. Massachusetts became the first state to do so via the Goodridge decision in 2003, taking effect in May 2004. NC's AG opinion fits the broader pre-2015 landscape in which most state AGs read state marriage statutes literally.

Q: Did the AG opinion address any constitutional challenge to § 51-1.2?
A: No. The opinion analyzed the duty of the register of deeds under existing NC statutes. It did not address federal constitutional challenges, which would emerge over the following decade.

Q: What is "reasonable inquiry" by a register of deeds today?
A: Under current law (and current AG guidance), the register of deeds checks for impediments like age, prior unresolved marriage, or close kinship. Same-sex status is not an impediment. The reasonable-inquiry duty has been recalibrated by Obergefell and intervening state guidance.

Background and statutory framework

NC's marriage statutes go back to the 19th century. The General Assembly added § 51-1.2 in 1996 in response to early national debate about same-sex marriage, modeling its statute on the federal Defense of Marriage Act of 1996. NC voters approved a state constitutional amendment (Amendment One) in 2012, further entrenching the ban. Federal courts struck down both the statute and the amendment in 2014, and Obergefell settled the question in 2015.

This AG opinion sits in the middle of that history. It reflects the office's reading of NC marriage statutes as they then existed, while applying a long-standing rule from State v. Snuggs (1881) about a register of deeds' liability for issuing an unauthorized license: criminal penalties only attach to bad-faith conduct.

The opinion's analytical move was conventional. The General Assembly had drafted clear statutory text barring same-gender marriage, and the AG declined to second-guess that policy through statutory interpretation. The constitutional question, which would later resolve in the opposite direction at the federal level, was not raised by the request.

Citations

  • N.C.G.S. § 51-1 (definition of marriage, as in effect in 2004)
  • N.C.G.S. § 51-1.2 (NC same-gender marriage ban, as in effect in 2004)
  • N.C.G.S. § 51-6 (marriage license signature requirement)
  • N.C.G.S. § 51-8 (register of deeds duty)
  • N.C.G.S. § 51-17 (reasonable inquiry, forfeiture)
  • N.C.G.S. § 161-27 (register's duties and penalties)
  • Cranfill v. Baity, 91 N.C. 293 (1884)
  • Gray v. Lentz, 173 N.C. 346, 91 S.E. 1024 (1917)
  • Julian v. Daniels, 175 N.C. 549, 95 S.E. 907 (1918)
  • Joyner v. Harris, 157 N.C. 295, 72 S.E. 970 (1911)
  • State v. Snuggs, 85 N.C. 541 (1881)
  • Obergefell v. Hodges, 576 U.S. 644 (2015) (superseding the conclusion)

Source

Original opinion text

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).

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 pari 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