Monday, September 7, 2015

Refusing to Issue SSM Licenses or Perform SSM

When I first saw that a Kentucky county clerk was refusing to issue SSM licenses on religious grounds, my reaction was what does she think she is one of those lawless Democrats?  (Yes, she is a Democrat.)  An "Oregion judge has stopped doing marriages so he doesn't have to do SSM.  Professor Volokh makes a strong case that both are allowed to do so:
Can your religion legally excuse you from doing part of your job? This is one of the questions in the Kentucky County Clerk marriage certificate case. But it also arises in lots of other cases — for instance, the Muslim flight attendant who doesn’t want to serve alcohol and who filed a complaint on Tuesday with the Equal Employment Opportunity Commission over the airline’s denial of an exemption.
The question has also arisen before with regard to:
  1. Nurses who had religious objections to being involved in abortions (even just to washing instruments that would be used in abortions);
  2. Pacifist postal workers who had religious objections to processing draft registration forms;
  3. A Jehovah’s Witness employee who had religious objections to raising a flag, which was a task assigned to him;
  4. An IRS employee who had religious objections to working on tax exemption applications for organizations that promote “abortion, … homosexuality, worship of the devil, euthanasia, atheism, legalization of marijuana, immoral sexual experiments, sterilization or vasectomies, artificial contraception, and witchcraft”;
  5. a philosophically vegetarian bus driver who refused to hand out hamburger coupons as part of an agency’s promotion aimed at boosting ridership;
  6. and more.

The answer is that the Religious Freedom Restoration Act, passed by Democrats some years to protect mescaline-using pagans also protects Christians!


  1. Unfortunately, in the current judicial and political climate, those protections may be not so much.

    Here in Arizona, we tried to enact protections for businesses, and the reaction from outside the state was so fierce that the local politicians caved. We were threatened (credibly) with major loss of revenue in our tourism industry, and a number of companies that were considering moving here threatened to back out.

    The powers of oppression are strong and are afoot. The word "tolerance" means "I won't tolerate you doing, saying or even thinking anything that gets in the way of what I want."

  2. It is a difficult area. I believe that if one has a religious objection to performing a job requirement, one should accept the consequences. In this case, Davis should resign or ask for a different position that does not interfere with her scruples. Similarly, the applicants for SSM should not be capriciously denied a license due to the personal beliefs of a civil servant.

    I was sympathetic to Davis until she refused to resign or delegate this task. That is not reasonable. It puts her in an analogous situation to the CLEO who won't sign off on a Form 4, because he doesn't believe "civilians" should have machine guns. There should be an escape for the applicant to engage in legal behavior without arbitrary denial.

  3. Paul, what about the flip side? When SSM was illegal in California, should mayor Gavin Newsom have been arrested and put in jail for allowing people to get a license? What about the clerks who granted those licenses?

  4. I thought Volokh's column was very informative. And, it seems to me that the State of Kentucky could have, for example, permitted one or more deputy clerks in the office to put their name on such licenses despite KY law requiring the County Clerk's name to be on the license. The main question is how to get the legal system to work in this case.

    But, the LGBT fascist brigades would have none of that! They made it a federal case as soon as possible, and the judge took what appears to me to be a rather inflexible stance.

  5. "If you like your religion, you can keep your religion."

    How long before there's as much difference between Jews, Mormons, Catholics, and Baptists as there is between Rotarians, Elk, Moose, and Kiwanis?

  6. Rick C-

    In general, I am in favor of the law being applied as written. The current system of selective enforcement is a tyrant's dream. Everybody is guilty, but only those not in political favor get prosecuted. Enforcement of stupid laws is more likely to cause those laws to be repealed than if they are only used against "icky" people. If Newson is not following the WA laws, perhaps he should be held liable. Why should he be special? As for the clerks, when instructed by a superior to commit an illegal act, they are damned if they do and damned if they don't.

  7. This clerk is a state or county employee. What if the nurse in Clayton's list was an employee of a state or locally funded hospital, like "County General Hospital"? Do it or quit?

  8. The clerk has an obligation to issue the license or quit unless an accommodation for her religious needs can be made, as required by law. It is way over the top to compare her to a nurse. That license is not vital, and the people seeking it came from another state intentionally to force her into this position.

    Her behavior is an act of civil disobedience, and one I support. Were it to cause the court to be ignored over the long term, it would be a big problem. But it won't, so the proper analogy is to a civil rights activist who does a sit in, blocking for a time the customers, and who willingly accepts the legal penalties that result. After all, the Supreme Court also held, once upon a time, that slavery was to be recognized and supported(Dred Scott).

  9. StormChaser said... the Supreme Court also held, once upon a time, that slavery was to be recognized and supported (Dred Scott).

    At that time, the Constitution (the 3/5 clause, the fugitive slave clause), Federal law (the Fugitive Slave Act), and the laws of fifteen states recognized and supported slavery. Its lawfulness in a state was not up to the Supreme Court, nor to Congress.

    What Dred Scott ruled was that Congress had no power to restrict slavery in the Territories. Which, as Lincoln pointed out at the Cooper Union, contradicted the action of the many members of the Constitutional Convention who as Senators and Representatives passed laws doing just that.