National Gay Marriage & Religious Rights

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Jon Rowe

Jon Rowe is a full Professor of Business at Mercer County Community College, where he teaches business, law, and legal issues relating to politics. Of course, his views do not necessarily represent those of his employer.

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42 Responses

  1. Avatar Christopher Carr says:

    “Barber’s article deals with the thorny issue of how Christians ought to live in a civil society whose legal rules disrespect their conscience.”

    If they haven’t figured it out by now, I doubt they ever will.

    As for clerks who don’t want to issue same-sex marriage licenses for religious reasons, I would suggest they either leave their bigoted religious intolerance at home or no longer work as representatives of the United States government.Report

    • Avatar Jon Rowe in reply to Christopher Carr says:

      I think those clerks may have a case for accommodation under existing statutory law. Though, if the law demands same sex couples are entitled to marriage licenses the government entities have a responsibility to make that happen while also doing their best to accommodate those whose consciences tell them not to issue the license.

      Of course, nothing is stopping anyone from resigning.Report

      • Avatar DavidTC in reply to Jon Rowe says:

        I think those clerks may have a case for accommodation under existing statutory law. Though, if the law demands same sex couples are entitled to marriage licenses the government entities have a responsibility to make that happen while also doing their best to accommodate those whose consciences tell them not to issue the license.

        No. Accommodation is basically only required for incidental thing that have no actual bearing on job performance, such as religious garb. Or things where there’s a bunch of people doing a bunch of things and there’s already a process to select who does what, so people can avoid certain things…for example, in corporations over a certain size, it is assumed that people will be scheduled various days, so accommodation can easily be made giving people different days off.

        What you *can’t* get accommodations for are things that are job duties, and it is reasonable that the person being asked to do them is the only person there. I.e., if you work in Subway, you can’t refuse to make sandwiches with bacon or ham. There’s no way to *schedule* that, and it is entirely plausible you might be the sole worker there. You can’t demand Subway always have an entire extra person on hand to handle pig products. (If, however, you worked in some large meat packing plant with ten assembly lines, and three of them package pig, you asking for an accommodation to only work on the other seven assemble lines is entirely reasonable.)

        And it’s basically exactly the same for a county clerk. County clerks are often there alone, or with two people who handle the same thing.

        Now, if this is some huge government, with five clerks there at all times, yes, it might be reasonable to accommodate a certain one away from gay marriages. This isn’t generally how it works, though…and it’s worth pointing out that this accommodation isn’t some magical 100% thing…if the workplace actually gets into a situation where they *need* that person to do a gay marriage, that person still has to do it, or they aren’t doing their job, and will probably get fired.

        Also I should point out so that, so that the government *itself* isn’t discriminating, it needs to keep that person away from *all* marriages. The government can’t make people getting ‘gay marriages’ get into a different line, nor can they make it where, when a gay couple shows up, they have to scramble to find another clerk. But if it already has ‘marriage’ line along with a ‘taxes’ line, or can easily set it up that way, they could be required to do that and put all their anti-gay marriage people over in taxes.Report

  2. Avatar zic says:

    Nice.

    I’ve been looking at jurisprudence. Runyon v. McCrary seems applicable, found while researching free association:

    Runyon v. McCrary, 427 U.S. 160 (1976), was a case heard before the United States Supreme Court, which held that federal law prohibited private schools from discriminating on the basis of race. Dissenting Justice Byron White argued that the legislative history of 42 U.S.C. § 1981 (popularly known as the “Ku Klux Klan Act”) indicated that the Act was not designed to prohibit private racial discrimination, but only state-sponsored racial discrimination (as had been held in the Civil Rights Cases of 1883).

    In this case, two students (NFL players) sued the private school when they were denied admission because of their race. SCOTUS ruled that while the private school was able to teach racism, but it couldn’t discriminate in admissions based on racism.

    Obviously, the mitigating factor here is race as protected status and sexual orientation is not; but the division of say what you believe vs. implement what you believe (when that implementation is discriminatory) seems an legal companion to your analysis of what Jesus would do.Report

    • Avatar zic in reply to zic says:

      I should add that I think this helps sort things out beyond the Clerk. Yes, the government as the burden of legal accommodation; both to the believer and to the folk seeking to marry.

      But Runyon v. McCrary goes to private entities; to the baker and the photographer because it dealt with a private school.Report

  3. Avatar Gerry says:

    To be fair, that article was on WND.com which is not exactly anything approaching a sane site. I regularly go there to read the comments. It is both a cesspool and unintentionally hilarious. I sometimes wonder how many of the commenters are just taking the piss but it eventually becomes clear that they truly believe what they are writing.Report

  4. Avatar Kazzy says:

    @jon-rowe

    What if…

    1.) The government hires two clerks: one to offer same sex licenses and one to offer opposite sex licenses and in the event they can’t justify keeping both on, they keep the person who is willing to offer both?
    2.) The government simply refuses to hire anyone who can’t answer the following question in the affirmative: “Will you issue licenses to any and all comers who are legally entitled to marry by the laws of our station and nation?”Report

    • Avatar Jon Rowe in reply to Kazzy says:

      For the first question, it would be an arguable criminal use of public resources given what I assume the percentage breakdown of the marriage license applications will be. Though, if for instance say 4% of the marriage license applications nationally will be for same sex couples, I assume this won’t be demographically evenly distributed. In urban areas the numbers will be higher, in more conservative suburban and rural places, the numbers for those seeking same sex marriage licenses will be very low.

      I do know how bureaucracy works; when a person at their level of employment can’t or won’t do a particular function of their job, they try to find someone else to do it, even if the supervisor has to do it. If only a very small % of marriages are same sex in nature, it’s possible this could be reasonably accommodated, like “one minute, Harry (who the applicants don’t know is the supervisor) will help you with this.”

      If on the other hand the entire office/administration has the same anti-gay opinion — if they can’t figure out a way to make it “work” — they do have the option of resigning in protest.

      http://www.nydailynews.com/news/national/tenn-county-clerk-staff-resigns-gay-marriage-ruling-article-1.2281567Report

      • Avatar Kazzy in reply to Jon Rowe says:

        Thanks, Jon. I’d be curious to see your response to DavidTC above.

        And I think Gregniak brings up a good point about the role of civil servants.

        And, really, where do we draw the line? I understand the problems with the government/courts judging “sincerely held religious beliefs”, but this really opens up a can of worms. Will we allow public school teachers to refuse to teach the children of same sex couples? Just shift all those kids into classrooms of teachers who are willing to teach them? Can public social workers refuse to work with same sex couples and their families? Can IRS employees refuse to process tax returns of same sex couples?

        Seriously, when does it stop? No one is asking these people to consecrate or wish well upon or even smile at same sex couples. We are asking them to do their fishing jobs which now entails recognizing the rights of all couples to marry regardless of the gender of the participants. You don’t have to like it. But it is the job you signed up for and if you don’t like it, door is to the left.

        I’m a teacher, albeit in a private school. I have to work with people and families who are all sorts of things I don’t like, some of which I find morally repugnant. Yet that doesn’t entitle me to disregard my professional obligations.Report

        • Avatar Stillwater in reply to Kazzy says:

          And I think Gregniak brings up a good point about the role of civil servants.

          Kazzy, for more on that check out the paper Jon links to at the bottom of the thread. It’s a good read. And very accessible to IANALs!Report

      • Avatar DavidTC in reply to Jon Rowe says:

        I do know how bureaucracy works; when a person at their level of employment can’t or won’t do a particular function of their job, they try to find someone else to do it, even if the supervisor has to do it.

        …uh, what?

        In all bureaucracy *I’ve* ever seen, calling for someone else to do it is a perfectly reasonable thing to do when you *can’t* do it. Like if you’ve just gotten hired and don’t know how, or if there’s some sort of law forbidding you from doing it.

        It’s not reasonable when you just *won’t* do a particular function of your job.

        If only a very small % of marriages are same sex in nature, it’s possible this could be reasonably accommodated, like “one minute, Harry (who the applicants don’t know is the supervisor) will help you with this.”

        County clerks do not have ‘supervisors’. Clerks are what senior officers are called in governments. Sometimes this position is literally just the secretary of the local government, keeping records. But in jurisdictions where they issue marriage licenses, they’ve usually pretty powerful. Regardless, they don’t have any supervisor besides the government itself, if appointed…and sometimes they’re even elected.

        The same is true of justices of the peace, who are judges with limited jurisdiction. No supervisors, except possibly some sort of higher court.

        A lot of people seem to thinking this is something like Walmart, where there are cashiers ringing up groceries and if they need a manager, they can push a button to call for one. I’ll admit even I’ve commented that way.

        In actuality, the people issuing marriages licenses are entrusted with specific legal powers, and someone else can’t just step in and do it. And there’s no actual reason to ever schedule *two* of them to be there at once.

        So, in reality, you will get to the front of the line, and the guy will call for Harry…because the guy sitting there is actually the assistant who handles specific things that don’t actually require a justice of the peace, and makes sure everyone else has their stuff in order. And Harry is the justice of the peace on duty for the entire county and is in back doing paperwork. And if he refuses, *you’re not getting married*. (Hell, you’re not getting married if he’s on his lunch break.)

        Likewise, if you turn in your marriage license to places use a county clerk that way, *the* county clerk has to sign it. The county clerk. The only one that exists.Report

  5. Avatar gregiank says:

    I’m a state gov employee and take a very dim view of other gov employees who don’t want to serve everybody. I can go for reasonable accommodations which the citizens should never have to know about or do anything to obtain. The citizen should never know a representative of their gov is bugged by them. If the gov can make the reasonable accommodation then fine. If not then the employee has a problem, not the citizen. Working for the government is not the same as working at a deli. Not that most people in the employ of the government want to accept it, but they should be upholding a high standard of service.

    FWIW I’ve had to do what i do for people with various repellent views and if don’t like them that’s tough for me. I have co-workers to review my work to make sure it is up to a high standard. Citizens are allowed to have crappy views.Report

  6. Avatar Jon Rowe says:

    Here is a cutting edge piece (given to me from a notable law professor yesterday) that argues against the accommodations.

    I think under Title VII of the Civil Rights Act they have a plausible case provided the licenses can still be dispensed on an equal basis and that the accommodation doesn’t cause an “undue burden” for the employer.Report

    • Avatar Stillwater in reply to Jon Rowe says:

      I’m in the process of reading the whole thing right now, but this sentence strikes me as the the beginning and end of the debate:

      No reasonable reading of the existing legal principles of religious liberty either justifies or requires a procedure permitting a public official to decline to perform his or her statutorily required duties.

      Wrt to this issue, religious folk want a specific codification (either a new one or explicit wording of an implied one or formal recognition of an “explicit” one or etc and so on) according them the right to refrain from performing the legally required duties of the governmental office they hold without fear of adverse consequences. Whether we phrase it as a form of codified discrimination or not, in practice that’s what it amounts to. More importantly, tho, is that the legal argument for codifying (or recognizing, whatever) such a form of discrimination by government office-holders bears what appears to me at the outset as an impossibly high burden of proof.Report

    • Avatar DavidTC in reply to Jon Rowe says:

      Yeah, that piece clarifies some of what I said above about ‘finding other people to perform the marriage’ isn’t a reasonable way to operate.

      Under no circumstances can the situation be that someone walks up to a public employee and be *unsure* if they will perform a wedding, or even be *inconvenienced*, because the wedding they have asked for is between two people of the same gender.

      All these idiotic laws appear to result in that, although they pretend not to by demanding that person not perform marriages for six months after…but that doesn’t undo the gay couple who *was asking for a marriage* and didn’t get one in a timely manner.

      And this piece even has a better grasp on Title VII than I do, and says there even the accommodation stuff I thought might fly is nonsense.Report

      • Under no circumstances can the situation be that someone walks up to a public employee and be *unsure* if they will perform a wedding, or even be *inconvenienced*, because the wedding they have asked for is between two people of the same gender.

        Likewise, under no circumstances can the situation be that someone goes to a drugstore that has accepted a prescription and be *unsure* if they will fill it, or even be *inconvenienced*, because the prescription is for a medication the pharmacist disapproves of.Report

        • Avatar DavidTC in reply to Mike Schilling says:

          Well, that’s what it *should* be, but sadly is not.

          However, discrimination on the basis of medication by a private corporation is entirely legal. (Despite the fact this discrimination oddly seems somewhat biased against women.)

          Discrimination in marriage law by any local government is now not legal.Report

    • Avatar Alan Scott in reply to Jon Rowe says:

      While I think most of that is spot-on, I disagree with it’s conclusions in regard to North Carolina’s rule (which allows officials only to opt out of performing all marriages rather than just SSM ones, and requires that the state ensure officials are available for all couples who want marriage.)

      I don’t think such a rule is required, but I think it’s a perfectly reasonable accommodation that appropriately takes into account both the employee it’s accommodating and the public to which he’d otherwise provide services. As a gay man, I would not feel slighted by this rule if I were a citizen of NC, whether or not I was seeking marriage, and as a public employee, I would hope my own agency were as willing to entertain religious exemptions along these lines if my own duties were modified to include something that ran so counter to my religious beliefs.Report

  7. How about a Wahhabist DMV employee who won’t issue license to women?Report

    • Avatar Kazzy in reply to Mike Schilling says:

      Where else can we go?

      Catholic judges refusing to sentence people to death. Or Catholic prison employees refusing to participate or, hell, even house those who are sentenced to death. Hindu toll booth operators refusing to allow trucks carrying beef to pass through. Jewish city employees refusing to turn on the street lights on Friday nights. Muslim IRS employees refusing to collect interest on unpaid taxes. Atheist teachers refusing to teach any form of ID in classrooms.

      Are all of these going to justify exemptions?Report

      • Avatar Kazzy in reply to Kazzy says:

        Will we allow conservative Christian judges to deny spousal privilege to gay couples?Report

        • Avatar Lenoxus in reply to Kazzy says:

          Huh. I’d never thought about that one before, and now that I’m thinking about it, it seems like the most ironclad possible argument against these sorts of exemptions.

          I mean, the whole point of the gay marriage fight is that gay couples can be “married”, in just about every possible context. Few conservatives are arguing that people (be they government agents like your judge, or private businesses like hotels with special deals for married couples) have the right to treat already-married gay couples as not married. Yet they’re insisting on such a right when it comes to not-yet-performed marriages. Their argument can be dismissed by simple time-shifting.

          I feel like there’s a good counterargument out there but I can’t come up with one at the moment. I guess it’s just that the actual process and ceremony of a marriage is particularly “special”? Or that married gay couples can be seen as “grandfathered in” by the traditionalists, who can still logically object to there being any new gay marriages?Report

          • Avatar Jon Rowe in reply to Lenoxus says:

            Think about the quickie divorce phenomenon. Even if a bunch of clerks were able to deny marriage licenses, you could simply go somewhere else and eventually get your marriage validated under your state’s law. I’m not saying they should permitted to do this.Report

            • Avatar Kazzy in reply to Jon Rowe says:

              @jon-rowe

              How is that not “separate but equal” rearing its ugly head again?Report

              • Avatar Jon Rowe in reply to Kazzy says:

                I don’t think so. It’s more like, “your roadblocks won’t stop us.” I think in every state you wouldn’t even need to travel out of state, but rather to a different locality. Though, admittedly, I’m ignorant of how the marriage licensure process works. I imagine it’s like the DMV process: Since it’s a matter of “state law,” any office in the state will do.Report

              • Avatar Kazzy in reply to Jon Rowe says:

                @jon-rowe

                Sure, ultimately, you get married. But you have to take a different road to get there. Gays to the right, straights to the left.

                I mean, those colored folk got to drink. So what was wrong with using a separate fountain?Report

              • Avatar Alan Scott in reply to Kazzy says:

                Jon isn’t saying the lack of services provided by clerks is acceptable.

                He’s just saying, their petty shit isn’t going to keep us gays down.Report

  8. Avatar zic says:

    Just seen on Facebook:

    “Selling gays a cake is participating in a marriage, but selling a gun to a shooter isn’t participating in a murder?”Report

    • Avatar Damon in reply to zic says:

      Well it IS facebook. Would you expect anything but inane comments?Report

    • Avatar Vikram Bath in reply to zic says:

      zic: “Selling gays a cake is participating in a marriage, but selling a gun to a shooter isn’t participating in a murder?”

      I have read this a few times and still have no idea what this person’s actual views on either matter are.Report

      • Avatar zic in reply to Vikram Bath says:

        Well, the person that posted it is making fun of arguments that some people are selective about what constitutes complicity in something evil; that the cake in the gay wedding = complicity; but gun dealers who sell to murderers =/= complicity in murder. But generally, with an analogy like this (and I know, beware analogies,) the comparison is to a small wrong (baking a cake or issuing a license for SSM) to a great wrong (murder); and that comparison reveals the person’s preferences.

        Since I know who posted it, I know that they support same-sex marriage and would prefer to see restrictions on who can purchase guns.Report

      • Avatar DavidTC in reply to Vikram Bath says:

        I think the point is that people’s views on the matter seem to change based on where they are on the political spectrum.

        Of course, the comparison is rather unbalanced in multiple ways: For one, the person providing the gun had no idea there’d be a murder, whereas the person providing the cake knew there would be a wedding. And in the other direction, the person providing the cake couldn’t possibly have stopped the wedding even if they have refused to bake a cake, because you can have weddings without cakes, and even marriages without weddings, but the person providing the gun *possibly* could have stopped the murder…at least in theory, if probably not in practice.

        So there’s all sorts of ways this comparison doesn’t really work. If anyone wants a more accurate comparison, here are a few better questions that Facebook can have free of charge:

        How would you feel if a judge was a member of a certain religion and thought only *his* religion’s marriages were valid, so refused to marry anyone else?

        How would you feel if a judge, when asked, refused to issue a concealed carry permit because he didn’t think the person should have a gun, despite state law saying they ‘shall issue’ them?

        How would you feel if a judge charged most people the correct amount under state law for a fishing license, but gave them to members of his family for free?

        It is the job of magistrate judges to issue all licenses, in an impartial manner, where the people comply with the law. This is not a trial, where right and wrong might have some weight. Issuing a license is a strictly factual matter as to whether the prerequisites are met. That is all the judge is supposed to be deciding on.

        If we cannot trust judges to *check a checklist* objectively no matter what their personal opinion, why the hell should we let that person be a judge?Report

  9. Avatar Kazzy says:

    It seems interesting to me that someone like Bree Newsome engaged in an act of civil disobedience and willingly accepted the consequences of doing so — including arrest — and that these folks want the laws rewritten so that their defiance of the law (and let’s not pretend it is anything other than defying the law) is consequence free.

    If they believe so ardently in the righteousness of their position, why not take an actual stand like the courageous Bree Newsome?Report

  10. Avatar Tod Kelly says:

    Jon Rowe: I don’t think so. It’s more like, “your roadblocks won’t stop us.”

    I think the problem here — as in most of the accommodation arguments I see — is that is assumes that the person who will refuse to perform a duty a gay person is legal entitled to is just this one guy in an office full of people who will happily do it. And if that was the way the word was, then there would never have been a need for civil rights movements in the first place.

    The problem with accommodating for these kinds of jobs is that there are still many towns and indeed regions where allowing people a religious exception to discriminate means that gays simply can’t get married. (Or that Muslims can’t get permits to build a mosque, or whatever.)Report

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