Can Court Clerks Decline to Do Gay Marriages? How It’s Playing Out in the States
Can Court Clerks Decline to Do Gay Marriages? How It’s Playing Out in the States
Submitted by Professor Ben-Joseph on Tue, 2015-07-14 08:25
A few cases of public employees who cite their faith in declining to issue
marriage licenses to same-sex couples have grabbed media attention, but similar
concerns exist in scores of courthouses across America, a lawyer for a prominent
Christian legal organization says.
A suit against a Kentucky court clerk was scheduled to be heard today by a
federal judge, and county commissions were set to vote on the resignations of
clerks in Tennessee and Texas.
The cases, the lawyer told The Daily Signal, are just three examples of
difficult choices created by the Supreme Court’s 5-4 ruling legalizing same-sex
marriage throughout the nation.
“I think the bottom line is, in most instances the government can accommodate
the religious beliefs of the objecting person,” said Jeremy Tedesco, senior
counsel for Alliance Defending Freedom.
An ultimatum of “comply or lose your job” by some LGBT activists and their
supporters, he said, runs counter to “our rich history of religious freedom and
Civil disobedience to the ruling, and to instructions issued by governors and
other state authorities, initially occurred among clerks and other court
employees in Alabama, Louisiana, Mississippi, Kentucky, Ohio, Tennessee, and
However, Tedesco said the offices of Alliance Defending Freedom, or ADF, have
been “inundated” by calls and emails from courthouse employees and officials who
aren’t sure what their office will do, want to understand their rights, or have
asked for an accommodation for their faith but haven’t yet gotten one.
In some cases, clerks and other court employees have resigned rather than issue
licenses for same-sex nuptials.
In others, LGBT rights groups and their supporters are demanding that employees
with objections quit or be fired or impeached.
It doesn’t have to be this way, Tedesco says.
“It’s incumbent on those governments that don’t have a system in place to put it
in place,” he said.
At this point, Alliance
Defending Freedom is providing basic counsel in requests “from California to
North Carolina and all states in between,” Tedesco said, but is not formally
representing anyone. He added:
It’s troubling [to suggest] you can’t be a Christian and have any of these
jobs—or be of any faith that believes marriage is between a man and a woman.
That’s just a very disturbing reaction to Obergefell, especially when the
court went out of its way to say the First Amendment provides protections
for people who continue to disagree with this.
Michael Aldridge, executive director of the Kentucky chapter of the American
Civil Liberties Union, sees it differently.
“When our laws are updated or changed, government officials have a duty and a
responsibility to impartially administer those laws,” Aldridge said in
announcing legal action against Rowan County Clerk Kim Davis.
A Resignation in Texas
The Associated Press is one of the media organizations tracking local court
offices where some public servants declined to provide marriage licenses to gays
or lesbians. Initial resistance for religious reasons appears to have dwindled
to cases in Kentucky, Tennessee, and Texas, AP reports.
In Texas, commissioners in Rusk County were slated to vote Monday on the
resignation Thursday of County Clerk Joyce Lewis-Kugle, who said her faith
did not allow her to comply.
Attorney General Ken Paxton, a Republican, wrote fellow
Texas officials that federal and state statutes known as religious
freedom restoration acts, as well as rights guaranteed by the First
Amendment, “may allow accommodation of religious objections [by county clerks
and employees] to issuing same-sex marriage licenses.”
The legal test of a burden placed on religious liberty by the government is
whether that burden is the “least restrictive means” to carry out a “compelling
state interest,” Paxton wrote.
If other authorized individuals may issue marriage licenses, he argued, the
government should not compel an employee to act against his conscience.
Rebecca L. Robertson, legal and policy director of the ACLU of Texas, disagreed.
“Religious liberty is the birthright of every American,” Robertson said in
a letter to clerks of two Texas counties where the ACLU said “recalcitrance” had
been reported by residents. “But the first duty of public officials is to uphold
the law, even if doing so conflicts with their personal religious convictions.”
Clerks who follow the Texas attorney general’s July 5 guidance, the state ACLU
said, would engage in “official misconduct” that “could lead to their removal
from office and expose them to damages in civil litigation.”
In Tennessee, commissioners in Decatur County were to act on a permanent
successor to replace Gwen Pope, who resigned July 5 as county clerk, and to fill
“I honestly believe God will take care of us,” Pope told The Jackson Sun after
she and two co-workers quit.
Decatur Mayor Mike Creasy said he disagreed with the Supreme Court ruling but
intended to enforce the law.
A Federal Case in Kentucky
In Ashland, Ky., U.S. District Judge David L. Bunning was to hear arguments at
noon Monday in the case of Rowan County’s Kim Davis. The ACLU sued
Davison behalf of four couples—two gay and two straight—after the county
clerk stopped issuing any marriage licenses.
Davis told the
Louisville Courier-Journal that “deep religious convictions” prevent her from
complying with the Supreme Court’s decision.
“It’s a deep-rooted conviction,” Davis said. “My conscience won’t allow me to do
that. It goes against everything I hold dear, everything sacred in my life.”
For days, protesters outside her office have demanded she step down.
Bunning, the federal judge hearing the case, is an appointee of President George
W. Bush and the son of former major league pitcher and U.S. Sen. Jim Bunning.
Kentucky Gov. Steve Beshear, a Democrat, has instructed courthouse employees to
carry out the Supreme Court’s ruling.
In a meeting last week, Beshear told Casey County Clerk Casey Davis—who is not
related to Kim Davis—that he should resign if he cannot do so. Davis had
suggested the government allow residents to purchase marriage licenses online so
that clerks would not be personally involved.
Also in Kentucky, Billy Joe Lowe, clerk of Green County, told WFPL-FM on
Thursday that his office would not accept license applications from same-sex
Protections for Religious Convictions
Employees shouldn’t have to resign or be fired, Tedesco said.
Governors, mayors and other high officials are off base in ordering clerks and
other employees to comply, the Alliance Defending Freedom lawyer says, as are
those who threaten civil liability or even criminal prosecution.
Federal and state laws already require employers—both public and private—to
accommodate the religious beliefs of their employees.
Most local offices and agencies that issue marriage license or officiate at
weddings, Tedesco argues, already have enough employees sharing duties that it
is not difficult to arrange for someone without religious objections to serve
The law isn’t just about accommodating an employee’s faith but about the duty of
the employer to do so, as long as it doesn’t impose an undue burden on the
That landscape, as well as rights secured in the Constitution, will form the
backdrop for determining how licenses for same-sex marriages will be issued in
courthouses across the nation in the wake of the Supreme Court’s ruling.
Although each local workplace may have its own challenges, many courthouses
already have implemented systems to accommodate the religious beliefs of some
employees, while others are figuring one out.
‘Not the Way a Free Society Works’
The Constitution and existing state and federal law do not require Americans to
have to choose between their job or their religious convictions “after the world
was made new by the Supreme Court,” Tedesco said:
This is not the way a free society works. This is a massive sea change in
our culture and our law that the Supreme Court has mandated. And the answer
simply can’t be—and of course this is the answer of the other side—‘You
can’t hold these positions if you hold those beliefs any longer, especially
if you want to act consistently with them.’
By the same token, Tedesco said, a supervisor who wants to make a political
point can’t simply say he or she can’t make an accommodation for an employee who
believes marriage is between a man and a woman—and that the employee can’t work
there any longer.
“You can’t just shirk your duty and fire people. Or tell them, ‘Make a choice.
Do this or leave.’ ”
Before the Supreme Court decision, the definition of marriage already had been
changed in 30 states—in
most cases by court rulings rather than legislation or voter initiatives.
The repercussions of the high court’s action will play out over many years and
is sure to involve litigation.
Tedesco said the climate reminds him of procedures and statutes of the 1950s and
1960s under which job applicants or employees were asked to sign a document
saying they had no affiliation and agreement, current or past, with the
Communist Party. The Supreme Court, after upholding such measures for several
years, eventually struck them down.
Similarly, “this is like an ideological litmus test on marriage,” Tedesco
Do you believe—or have you ever been affiliated with a faith organization
that believes—that marriage is between a man and a woman? If so, you can’t
have this job, or you’re fired from this job. I think the analogy is spot
on. … Should you be able to exclude people of faith from government jobs?
There’s got to be a way that those two can be simultaneously pursued.