What happens when clerks object to providing gay marriage licenses?

Washington D.C., Jul 9, 2015 / 02:28 am

After the Supreme Court legalized same-sex marriage, some county clerks have voiced religious objections to issuing marriage licenses to same-sex couples. Does legal protection for them exist?

"Frankly, there's no reason why they [the clerks] should have to resign," Ken Connelly, legal counsel for the group Alliance Defending Freedom, told CNA.

This is assuming that should some clerks recuse themselves from issuing licenses on religious grounds, other clerks would be available to do so for same-sex couples, he said.

The Court's recent decision in Obergefell v. Hodges ruled that all 50 states must issue marriage licenses to same-sex couples and recognize such marriage licenses from other states.

However, some county clerks responsible for issuing the licenses have expressed religious objections to recognizing same-sex unions as marriage. What has happened to them? The results vary by case.

A whole clerk's staff in Tennessee's Decatur County resigned their positions for religious reasons rather than issue marriage licenses to which they object. The county clerk Gwen Pope had been serving since 2008 but resigned her position on July 5.

"I honestly believe God will take care of us," she told the regional newspaper The Jackson Sun.

After the Obergefell decision, Texas attorney general Ken Paxton, pledged to "do everything I can from this office to be a public voice" for clerks who are faced with fines and lawsuits because they cannot issue the licenses.

When Hood County clerk Katie Lang initially refused to issue same-sex licenses, one couple filed a lawsuit. The county eventually gave them their license, but they are continuing with the lawsuit until the clerk's office agrees to grant licenses "to all couples, gay and straight, without delay," and pay the attorney's fees for the lawsuit, according to a statement from the couple's attorney.

A clerk in Kentucky's Boone County initially refused to issue marriage licenses to same-sex couples, but relented three days after the Supreme Court decision.

The legal challenges for these clerks can come in a number of forms, noted Roger Severino, director of the DeVos Center for Religion and Civil Society at the Heritage Foundation.

Challenges vary by state. Clerks might face a direct lawsuit from a couple seeking a license. The couple might sue the state agency responsible for the licensing. Or a government agency might sanction the clerk for discrimination.

However, clerks are not required to resign or grant licenses in such cases, legal experts told CNA, because they do have legal avenues to defend themselves.

First, Connelly said, clerks could cite First Amendment protections of the free exercise of religion and of speech. And every state's Constitution must contain protections similar to – and many are actually stronger than – those in the First Amendment.

If a government agency takes action against a clerk for refusing to issue a license, the clerk could invoke Title VII of the Civil Rights Act, Severino added. Title VII says employers cannot discriminate against their employees on the basis of religion, race, or sex.

That law "requires reasonable accommodation of religious beliefs and exercise" on the part of the employer, he said, adding that the accommodation cannot by law "present an undue hardship on the agency."

If a clerk invokes Title VII by informing his employer of his recusal on religious grounds, the employer can then find another employee to issue a marriage license.

The employer could also establish a system "behind the scenes" where certain license duties are given to certain employees. In this case, the issuance of same-sex marriage licenses would be a job only given to an employee agreeing to do so.

"So there are ways where religion can be accommodated, and there are no losers," Severino said.

Of course, if an entire clerk office refuses to issue same-sex marriage licenses – like the Decatur County office in Tennessee – then this complicates an accommodation claim under Title VII, since no employee in the office would be available to issue a license to same-sex couples.

If Title VII is not a viable option for clerks, there are statutory protections in state law, a kind of "backstop to the First Amendment," as Connelly put it. Some states have stronger religious freedom protections than others, he noted.

For instance, some states have a version of the federal Religious Freedom Restoration Act. That law prevents the government from putting a "substantial burden" upon a person's free exercise of religion, except when it proves that the burden furthers a "compelling government interest" and that it is the "least restrictive means" of doing so.

For clerks, laws like this could enable them to refrain from issuing licenses without fearing adverse action by the government, Severino explained.

"And so long as the government can accommodate without any losers, it's hard to see how a clerk would not win" in such a case, he added.

Some states are offering even more specified statutory protections. Whether more states will do so is uncertain.

"I think we need some new legal protections for county clerks," said Dr. Chad Pecknold, a professor of theology and politics at The Catholic University of America.

"We need new legal protections now for people who have come to believe that this law is unjust."

States will be reticent to offer these protections, Pecknold predicted.

"That is part of the tragedy of Obergefell, that the ruling was made in such a way that states should now have to scramble, actually, to provide new levels of protections. And many of them are not going to feel inclined to do so."

North Carolina has stepped up to offer specific protections for county clerks, Severino pointed out.

After the state's administrative office sent a letter out saying all the clerks had to provide same-sex marriage licenses or be fired and possibly face criminal charges, the state legislature took action.

They provided an "opt out" for clerks who recused themselves, on religious grounds, from issuing licenses. When the governor vetoed the bill, the legislature overrode the veto.

"We need states to actually step up and provide protections, to make sure that civil servants and their rights are also protected," Severino said, adding of the North Carolina law, "I think it's a great protection because there are no losers. Religious liberty wins, and no one is denied anything."