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Furthermore! – Court Clerks, Public Law, and Personal Opinion

November 21, 2012

Furthermore

Furthermore! – Court Clerks, Public Law, and Personal Opinion

A conservative legal group are advising court clerks on how to not issue marriage licenses to LGBT couples. They call it “religious freedom.” It’s really about whether personal opinion overrides public law. (More)

According to the religious news website Charisma News, the religious legal group Alliance Defending Freedom are advising court clerks in Maine, Maryland, and Washington on how to not issue marriage licenses to LGBT couples. Under the loaded headline “Gays Can’t Force Christian Clerks to Issue Same-Sex Licenses,” Ann Carroll writes:

Three new legal memos advise municipal clerks in Maine, county clerks in Maryland and county auditors in Washington that provisions in state law allow them to delegate responsibility for issuing the licenses to deputies or assistants who don’t have conscience-based objections to issuing the licenses to same-sex applicants.

“No American should be forced to give up a constitutionally protected freedom, nor should any American be forced to give up his or her job to maintain that freedom,” said ADF Senior Counsel Austin R. Nimocks. “Religious freedom is paramount to every American, including those issuing marriage licenses. They can perform their job without violating their conscience.”

(Hat tip to Slate‘s Jillian Rayfield.)

Let’s start with the headline. This isn’t a question of whether “gays” can “force” Christian clerks to issue marriage licenses, any more than heterosexuals “force” those clerks to issue marriage licenses. State law sets the requirements a marriage license. Court clerks simply acknowledge that a couple have met the state’s requirements … as a matter of public law.

That last clause matters. The requirements for a marriage license are a matter of public law. A court clerk acts as an agent of the state, and his/her duties are prescribed by public law, not personal opinion. A court clerk may devoutly believe that women should not work outside the home, but he/she cannot refuse to accept a plaintiff’s filing of a lawsuit alleging sex discrimination in hiring. The clerk does not ‘approve’ that lawsuit; he/she simply acknowledges that the plaintiff has correctly completed the forms necessary to open a case. The clerk’s personal opinion on that lawsuit, and the underlying law, is irrelevant.

Likewise a court clerk’s personal opinion on marriage equality is irrelevant. Verifying that a couple applying for a marriage license meet the state’s age, residency, and other legal requirements is not a matter of “conscience.” It’s purely an administrative function. Court clerks don’t ‘approve’ marriages licenses any more than they ‘approve’ lawsuits. They make sure forms are completed correctly and supporting documents are in order. Although some states allow court clerks to officiate civil weddings, clerks are not required to officiate any wedding, for any couple.

To take this “conscience clause” to its logical conclusion, imagine you’re a court clerk and Ralph Rich walks in with an envelope with fifty $100 bills. He’s there to pay the property taxes on Rich Manor, and his tax bill is $5000 for that quarter. Rich Manor is a big place, it seems. Your religious beliefs include Jesus’ admonition that “the man with two tunics should share with him who has none, and the one who has food should do the same.” There are homeless people in your county and your religious beliefs say Ralph should let them live at Rich Manor.

“I can’t accept the five thousand dollars as payment in full on your quarterly tax bill, Mr. Rich,” you say. “My conscience requires that you also prove you’re housing as many homeless people as Rich Manor can hold.”

“But that’s not in the county or state tax code!” Ralph says.

“There’s the public law,” you reply, “and then there are my religious beliefs, which are paramount and protected by the First Amendment.”

I’ll go out on a limb and guess the Alliance Defending Freedom wouldn’t help a court clerk who tried that … not even if the clerk were willing to refer Ralph to someone else in the office whose “conscience” would not be “offended” by accepting the payment required by the county and state tax laws. Nor should they.

The people of Maine, Maryland, and Washington have spoken, through their legislatures and through their ballots. As agents of their state governments, court clerks have no right to impose their religious beliefs on citizens who come in to file lawsuits, pay property tax bills … or ask for marriage licenses.

3 Responses to “Furthermore! – Court Clerks, Public Law, and Personal Opinion”

  1. winterbanyan Says:

    It’s amazing how well a counter-example can establish the stupidity of an argument. Great job with that.

    Public employees are required to follow the law. They don’t set it, they don’t debate it and they don’t pick and choose. If they can’t stomach that, they need to look for other work.

  2. Jim W Says:

    I wish the same standards were applied to the Virginia State Attorney General.

  3. addisnana Says:

    Well said and great counter with the Ralph Rich argument. The refrain of “religious conscience” that seems to be being sung by that crowd is tiresome and undemocratic. We do not have a theocracy, thankfully. I wouldn’t choose to live in their kind of theocracy anyway.