RICHMOND — Court clerks with religious objections to issuing marriage licences to couples because of their sexual orientation, marital history or many other reasons could send them to the Department of Motor Vehicles instead under a bill on its way to the Virginia Senate floor.
Sponsored by Sen. Charles “Bill” Carrico (R-Grayson), the bill would give clerks or deputy clerks wide latitude to refuse to issue licenses to couples if they object to their unions on “personal, ethical, moral, or religious grounds.”
The legislation does not specify any class of couples that could be denied licenses from clerks, but Democrats dubbed it the “Kim Davis bill,” a reference to the Kentucky clerk who was jailed last year after refusing to issue licenses to same-sex couples.
“Whether it be homosexual marriage or two heterosexuals who were divorced before, whatever that religious reason is . . . they would have an option to be able to allow those individuals to go to the DMV,” Carrico said.
When asked hypothetically whether the measure would cover clerks who object to granting licenses to interracial couples, Carrico initially said it would. He later said that, upon reflection, it would not apply because race is a “protected class” under anti-discrimination laws.
Sen. Mark Obenshain (R-Rockingham), chairman of the Senate panel that sent the bill to the floor, said he did not think the bill would allow a clerk to discriminate on the basis of a couple’s racial makeup.
“I would never have supported a bill that would have that effect,” he said. “If it does this, I clearly can’t support it. . . . We’re going to look at it.”
But Claire Guthrie Gastañaga, executive director of the American Civil Liberties Union of Virginia, said the measure is written so broadly that it could permit all types of discrimination.
“It would allow any clerk to practice whatever whim they have,” she said. “They could choose to not grant licenses to people who are Republicans if they’re Democrats. The whole thing is just fraught with a license to impose, as a public official, your personal whim on the public.”
Under the bill, couples who are turned away by the clerks could obtain a marriage license instead from the state Registrar of Vital Records at a local Department of Motor Vehicles office.
Sen. Adam Ebbin (D-Alexandria), the legislature’s first openly gay member, said the bill “calls for separate and unequal treatment, and this is immoral, unjust and unconstitutional.”
The bill passed the Senate Courts of Justice Committee on Wednesday night over the objections of all six Democrats and one Republican, freshman Sen. Glen Sturtevant of Richmond. It now moves to the full Senate for a vote, which is expected to take place next week.
“America has a long tradition of finding accommodation for religious exercise,” said Chris Freund, a spokesman for the Family Foundation of Virginia. “This bill would ensure that couples can obtain a marriage license through different means while at the same time ensuring that the conscience rights of clerks are protected.”
Gov. Terry McAuliffe (D) vowed to veto the measure if it reaches his desk.
“The Governor will veto this divisive and distracting bill and then get back to work building a new Virginia economy that is open and welcoming to anyone who wants to live, work or start a business here,” spokesman Brian Coy said in an email.
“It’s blatantly unconstitutional,” said Senate Majority Leader Richard Saslaw (D-Fairfax). “I don’t think it will last five minutes in a federal courthouse. Somebody could easily claim, ‘Well, I don’t believe in allowing interracial marriages, inter-religious marriages, whatever.’ There’s no end to that.”
Told that Carrico had initially said that the bill would apply to clerks opposed to interracial marriage, Saslaw expressed surprise.
“That is something you would have heard in the days of massive resistance,” he said.
The bill is unlikely to make it out of the Senate, which Republicans control by a 21-to-19 majority. Without Sturtevant’s support, the GOP does not appear likely to have the votes to pass it.
Sen. Donald McEachin (D-Henrico) said public officials who do not want to carry out their duties should find another line of work.
“Public servants need to serve, and serve all Virginians — which is the opposite of what this bill proposes,” he said.
Carrico countered that Democrats cheered when Attorney General Mark Herring (D) declined to defend Virginia’s constitutional ban on gay marriage soon after taking office two years ago. Herring said he took that stance not because of his personal beliefs, but because he had concluded that the ban was no longer constitutional.
“Equality Virginia, the ACLU, they all argued the fact that the clerk took an oath of office,” Carrico said. “If they want to use that argument, Attorney General Herring took an oath of office to uphold the constitution of Virginia and failed to uphold it. . . . That argument went two ways. They can’t say that it applies to the clerk but it doesn’t apply to the attorney general.”