Ezel / AG Opinions / NC
NC NC AG Advisory Opinion (2004-03-29) 2004-03-29

In 2004, could a NC register of deeds issue a marriage license to a same-gender couple, and what penalties applied?

Short answer: No. The AG concluded NC marriage statutes at the time defined marriage as between a male and female; a same-gender license would violate state law. Under State v. Snuggs, a register acting in good faith faced only civil forfeiture under § 51-17, but a register acting in bad faith could be guilty of a Class 1 misdemeanor under § 161-27 and removed from office.
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. AG opinions are persuasive authority but not binding precedent like a court ruling. This summary is for informational purposes only and is not legal advice. Consult a licensed North Carolina attorney for advice on your specific situation.
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

The Durham County Register of Deeds asked the AG whether he could issue a marriage license to a same-gender couple and what penalties he might face. The opinion came down in March 2004, well before Obergefell v. Hodges, 576 U.S. 644 (2015), legalized same-sex marriage nationwide.

The AG's answer tracked the statutes as they then stood. N.C. Gen. Stat. § 51-1 defined a valid marriage as one created "by the consent of a male and female person who may lawfully marry." § 51-1.2 further declared that marriages between persons of the same gender, whether contracted or performed inside or outside North Carolina, were "not valid in North Carolina." The General Assembly had set the public policy of the State.

The register of deeds' duties were set in § 51-8 (issue marriage licenses to persons authorized to be married under NC law) and § 51-17 (issue a license only after a "reasonable inquiry" that no "lawful impediment" exists). Gray v. Lentz, 173 N.C. 346, 91 S.E. 1024 (1917), required the register to "be cautious and to scrutinize the application." Julian v. Daniels, 175 N.C. 549, 95 S.E. 907 (1918), held the inquiry had to be done with solemnity, not as a matter of form. Under those statutes, the reasonable inquiry should reveal that two same-gender applicants had a legal impediment. The register should not issue.

The penalty side had two layers:

  • Civil forfeiture under § 51-17. A register who "knowingly or without reasonable inquiry" issued a license to a couple with a lawful impediment forfeited $200 to any parent, guardian, or person standing in loco parentis who sued for it.
  • Criminal misdemeanor under § 161-27. A register who fails to perform duties imposed or authorized by law is guilty of a Class 1 misdemeanor and "shall be removed from office."

The AG read State v. Snuggs, 85 N.C. 541 (1881), as the controlling case on criminal exposure. Snuggs held that a register issuing a marriage license contrary to law could be criminally liable only if the illegal act was done in bad faith. A register acting in good faith was only civilly liable. Applied to the 2004 question: a register who in bad faith issued a same-gender license could face § 161-27's misdemeanor and removal. A register acting in good faith would not face criminal exposure.

Currency note

This opinion was issued in 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.

The legal landscape changed entirely after this opinion. Obergefell v. Hodges, 576 U.S. 644 (2015), held that the Fourteenth Amendment requires states to license and recognize same-sex marriages. North Carolina's same-gender marriage statutes were already enjoined in October 2014 by federal court decisions in this state (General Synod of the United Church of Christ v. Resinger and Fisher-Borne v. Smith) following the Fourth Circuit's Bostic v. Schaefer decision. The 2004 opinion is now of historical interest only. Registers of deeds in North Carolina have been legally required to issue marriage licenses to same-sex couples since 2014.

Common questions

Q: At the time of this opinion, what was the criminal liability standard?
A: Bad faith. Under State v. Snuggs (1881), a register acting in good faith faced only the $200 civil forfeiture under § 51-17. Only bad-faith issuance triggered § 161-27 criminal liability.

Q: What happened to this rule after Obergefell?
A: It became unconstitutional to deny same-sex marriage licenses. Registers of deeds now issue licenses to same-gender couples on the same terms as other couples, and the §§ 51-1, 51-1.2 male/female framing has been displaced by federal constitutional law.

Q: How does the bad-faith standard from State v. Snuggs interact with current law?
A: It is largely historical. The current question for a register is whether to issue a license to a couple regardless of gender. State v. Snuggs lives on as authority for the general proposition that a misdemeanor for failing to perform duties requires bad faith, but the underlying same-gender marriage issue is no longer the trigger.

Q: Did the AG analyze the federal Equal Protection question?
A: No. The opinion answered only the state-law question the register asked. Federal constitutional review of same-sex marriage bans had not yet begun in 2004; the federal litigation that culminated in Obergefell was still years away.

Background and statutory framework

NC marriage statutes circa 2004:

  • § 51-1. Valid marriage = consent of a male and female who may lawfully marry.
  • § 51-1.2. Same-gender marriages not valid in NC, including those contracted out of state.
  • § 51-6. Marriage requires a license signed by the register of deeds.
  • § 51-8. Register issues licenses to persons authorized to marry under NC law.
  • § 51-17. Register must make reasonable inquiry; $200 forfeiture for issuing with lawful impediment or underage without consent.
  • § 161-27. Register's failure to perform statutory duties is a Class 1 misdemeanor; removal from office.

The case law:

  • Cranfill v. Baity, 91 N.C. 293 (1884). Marriage requirements can be created or abrogated by the General Assembly.
  • Gray v. Lentz, 173 N.C. 346, 91 S.E. 1024 (1917). Register must be cautious and scrutinize the application.
  • Julian v. Daniels, 175 N.C. 549, 95 S.E. 907 (1918). Inquiry must be done with solemnity.
  • Joyner v. Harris, 157 N.C. 295, 72 S.E. 970 (1911). §§ 51-8 and 51-17 read in pari materia.
  • State v. Snuggs, 85 N.C. 541 (1881). Criminal liability only on bad faith; civil liability for good-faith mistake.

The opinion was signed by Senior Deputy Attorney General Ann Reed and Special Deputy Attorney General Gerald K. Robbins.

Citations

  • N.C. Gen. Stat. § 51-1 (valid marriage requires male and female)
  • N.C. Gen. Stat. § 51-1.2 (same-gender marriages invalid)
  • N.C. Gen. Stat. § 51-6 (marriage license signed by register)
  • N.C. Gen. Stat. § 51-8 (license issuance to authorized persons)
  • N.C. Gen. Stat. § 51-17 (reasonable inquiry; $200 forfeiture)
  • N.C. Gen. Stat. § 161-27 (Class 1 misdemeanor; removal)
  • 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)

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