This week, the entire staff of a county clerk’s office in Tennessee resigned because they didn’t want to issue marriage licenses to same-sex couples.
To which I say: Thank you for setting a good example! If you don’t feel like doing your job, then you should be honest about it, man up and quit. It’s the honorable thing to do.
Unfortunately, public officials in other parts of the country — including Kentucky, South Dakota, Arkansas, Louisiana, Alabama and Texas — have taken a more cowardly approach. They have instead tried to weasel out of some of their sworn duties, while still collecting the same taxpayer-funded paychecks. Why are we letting them suckle the government teat if they won’t work? They should either perform their jobs in full or follow their consciences out the door.
You see, across the country, state government employees must take an oath swearing to uphold the U.S. Constitution. And as the Supreme Court recently and unambiguously ruled, the Constitution guarantees that same-sex couples have a fundamental right to marry. County clerks don’t get to unilaterally decide, based on their reading of scripture, to exempt themselves from aspects of the Constitution that they dislike.
Same-sex marriage opponents like to claim that public officials are entitled to reasonable accommodation of their religious beliefs. But that fundamentally misunderstands the legal history of religious accommodations. Courts have said, again and again, that accommodations may be granted only if they do not injure or substantially burden a third party (which includes injuring the dignity of same-sex couples by denying them marriage licenses) or otherwise wreak havoc on the legal system. As the saying goes, the right to swing your fist ends where my nose begins.
In other cases where people tried to exempt themselves from otherwise generally applicable laws on the grounds of religious belief, the courts said no dice, at least when there was third-party harm. In perhaps the most awesomely named Supreme Court case of all time, Newman v. Piggie Park Enterprises , the court affirmed the principle that a barbecue chain could not refuse to serve African American customers because the owner sincerely believed that the Bible mandated segregation of the races. The owner’s free exercise of religion did not get to trample the civil rights of others.
If anything, public officials arguably have fewer religious liberty protections than do barbecue-joint owners and other private citizens, at least when serving in their official capacities.
Multiple federal courts have decided that, for example, law-enforcement officials don’t get to decide which people they serve and protect, which means they are not entitled to opt out of assignments to patrol abortion clinics, protect casinos or investigate pacifist groups because of religious objections. Under similar logic, marriage clerks don’t have the right to choose not to serve gay men and lesbians, just as they also can’t refuse to serve interracial couples (something that a Louisiana public official, citing matters of “conscience,” attempted as recently as 2009; he was forced to resign).
As laid out in a new paper from Columbia University’s Public Rights/Private Conscience Project, there are two key reasons public officials get less leeway for religious accommodations. One is that government workers, as agents of the state, are sworn to uphold equal protection of the laws under the 14th Amendment. The other is that allowing such officials to reshape their job duties and administrative procedures in accordance with their religious beliefs starts to look a lot like a state establishment of religion — expressly forbidden by the First Amendment.
Happily, one conscience-burdened county clerk, Casey Davis of Casey County, Ky., has come up with an ingenious workaround to giving marriage licenses to gay couples.
He might not have thought it all the way through, though.
“There is no one in my office issuing licenses, they all object for religious reasons,” Davis said in a radio interview. “The solution that I’ve suggested to the governor is that, since we pay our bills, shop, do everything else online, why couldn’t we have a marriage license issued online?”
Yes, indeed: Let the robots take his job, just as automation is allegedly taking the jobs of all sorts of other Americans. Davis’s solution even has the added benefit of shrinking government payrolls, which should make conservatives happy, too. Sounds like a win-win to me.