Legal recognition of same-sex marriage, and the change of the laws permitting the issuance of marriage licenses to same-sex couples, will not be the end of the fight for marriage equality. Opponents of SSM will, and are even now beginning to, set up the next fight at the level of personal religious conscience on the part of the people who are asked to issue marriage licenses. This story from New York is one example of this next phase of the fight, which had been signalled by the naming of a deputy county clerk as an intervenor in the Prop. 8 challenge case. Doug Mataconis, who gave the tip to the article, gets it right — the town clerk should issue the marriage license regardless of her personal objections to or distaste of her job.
However, during the brief period in which same-sex marriage licenses were issued in California, the county clerk of neighboring Kern County discontinued performing marriage ceremonies — for all couples, not just same-sex couples. Marriage licenses were issued by her office — I am friends with a couple of guys who got the second same-sex license issued in Kern County. But my friends had to have their own ceremony; before the Marriage Cases decision, the Clerk performed short ceremonies for the opposite-sex couples that came in to get licenses and wanted a ceremony on the spot. But because she did not want to personally sanction same-sex marriages, she would not perform the ceremonies for such a couple, and thus she stopped performing ceremonies at all.
The California clerk’s decision was appropriate and valid. The New York clerk’s decision, however, is not. What’s the difference? It is the difference between a public official’s ministerial and discretionary duties.
A ministerial duty is one that is more or less automatic. If one could imagine a computer sophisticated enough to perform the task, one would program a computer to do it. We don’t have sophisticated enough computers for enough things, or at least not enough money to buy and implement using them. So instead we use people to perform routine-to-complex tasks — tasks in which there is little room to make judgment calls, only to assess whether appropriate prequisites to governmental actions have taken place.
For instance, the clerk of the court does not have the discretion to refuse a lawsuit presented for filing — the clerk has the ministerial, mechanical duty of determining if it is accompanied by the required paperwork, if the appropriate filing fee is tendered along with the lawsuit, and so on. But it’s not for the clerk to say, “this is a frivolous lawsuit and I’m not accepting it.” That requires discretion — the making of a judgment call — so in the case of filing a lawsuit, it requires a judge to read the lawsuit and decide if it is potentially meritorious or obviously frivolous.
Is the issuance of a marriage license more like the filing of a lawsuit or the evaluation of its legal merit? It requires determining if the appropriate application has been filled out correctly, in some cases whether a blood test or other medical screening has been done (although why that should be necessary in a same-sex marriage, I haven’t a clue), whether the applicants are within the legal definition of consanguinuity, already married to others, or not yet adults (typically by way of affidavit, meaning based upon the say-so of the applicants themselves), and whether the required fee is tendered in valid funds. Not much else. In other words — has the paperwork been filled out correctly? If so, the license is issued. This is a ministerial task. Either the paperwork is done right or it isn’t.
Performing the marriage ceremony, however, is something for which there is not a lot of legal guidance; it’s left up to the officiant to decide how it’s done. I got myself ordained as a minister to perform a marriage ceremony and then actually did it; no one told me how to do it and no one has asked what the content of my ceremony was. For a county clerk, there is no requirement to perform the ceremonies at all. She can do it if she wants to, or not do it if she wants to.
There is no discretion about whether a ministerial act should be performed or not. There is no compulsion for a discretionary act to be performed at all.
Because the clerk asked to issue a marriage license is performing a basically mechanical task, I do not see room for one’s personal objections to the act being performed as a valid reason for the ministerial official to refuse to perform it. The military, after all, is adapting to the repeal of Don’t Ask, Don’t Tell, despite the distaste of much of its leadership to that policy decision. They don’t have a choice about the policy, and they’re implementing the legal instruction given to them, up to and including authorizing chaplains to perform same-sex wedding ceremonies in states that have SSM (if SSM is within the religious teachings of their own religions, which is appropriate because, as I mentioned above, how a ceremony is performed is discretionary where issuing the license is not).
The telling thing about all this is that clerks who presumably subscribe to the Christian religion and say they have a personal religious objection to same-sex marriages do not seem to be concerned about issuing marriage licenses to divorced people. Christianity generally prohibits divorce, the last time I read Mark 10:2-12 (granted, there may be exceptions). At one time, it was thought that the Bible prohibited interracial marriages (again, granted, that seems to have been an erroneous understanding of the Bible) too.
There should be no religious exemption to the performance of a ministerial act. If you have a religious objection to performing a ministerial act, do not seek out a job where you are required to perform that act. Is this any different than a Muslim clerk at a grocery store refusing to handle pork? I’ve little sympathy for such a store clerk (sell the pork to your Christian customers, already, you aren’t being asked to eat it yourself), and little sympathy for a county clerk who doesn’t like same-sex marriages (issue the license already, you aren’t being asked to consummate the marriage personally). It’s not your sin (although I would be quick to tell you that neither eating pork nor same-sex marriage are sinful because they cause no harm to anyone, nor is there any deity against whom it is possible to sin in the first place).
If the official act seems to sanction something that the governmental functionary thinks is a sin, so what? It isn’t the functionary giving her approval to the act, it’s the government, and it isn’t the functionary who is doing the act, it is the third parties seeking the license — a license everyone agrees that the couple is legally entitled to get.
1) Is the couple coming into the office entitled to the marriage license?
2) Is the clerk entitled to a job?
It seems to me that the answer to 1 is “yes” and 2 is “no”.
If you have someone who refuses to do his or her job, fire him or her and hire a different person who *WILL* do the job.
Word.
I know exactly what John Stewart would say about the New York case.
Consider this, though: The Muslims in the article who refused to handle pork were offered alternative positions where pork-handling was not required. Minnesota likely has a law mandating “reasonable accommodation” of religious beliefs.
So does New York. Unlike the other clerks who simply chose to resign, this one asked the city to accommodate her religious beliefs. The city made what it felt was a reasonable accommodation. (It’s worth noting that the clerk originally asked to have a deputy issue licenses for same-sex couples only. The town rightly determined that this would be discriminatory, and arranged for a deputy to issue all marriage licenses.)
If this were a bigger town, it wouldn’t really matter. A deputy willing to issue licenses would likely be on staff at all times. But given that this is podunk nowheresville, the town clerk’s office is a one-woman part-time affair–which means she has to arrange for someone else to show up and issue the license.
Frankly, I feel like this is a reasonable compromise. I don’t agree with the clerk’s religious beliefs, but I grudgingly acknowledge her right to believe the things she does. And given that the brides are likely going to have to meet with the florist five times, the caterer seven, and the dress shop twelve, I don’t think it’s a horrible imposition if they have to go to the clerk’s office twice.
The actions of the lesbian couple here seem less about actually being discriminated against, and more about a desire to punish the clerk for her beliefs. And the way I see it, engaging in these sorts of us vs. them conflicts is only going to hurt the progress of glbt equality, and make it take that much longer before I get the right to legally marry my boyfriend here in my home state.
I respectfully disagree. If when my wife and I went to pick up our marriage license, we’d been greeted with “I won’t issue a license to interracial couples, but you can try again tomorrow”. I’d have dome everything I could to get the clerk fired.
Let’s be clear–because of her beliefs, she’s not issuing licenses to ANY couples. If you and your wife went to pick up your marriage license, the word “interracial” wouldn’t come up at all.
You say you would do anything to get that clerk fired, but ask yourself–would you actually decide to engage in an expensive and time-consuming lawsuit? One that’s likely to stir up racial tensions but not actually get the clerk in question fired?
I see — this is the case JB was referring to where she’s refusing to do here job at all. Then it should be as simple as firing her for non-performance. I don’t get to say “I’ll write code, but I have a religious objection to writing unit tests. You need to hire someone else to do that.”
It’s likely though, that you do have that right, depending on the state you live in.
Most employers are, by law, required to reasonably accommodate the religious beliefs of their employees. Of course, if your employer decided that hiring someone else wasn’t a reasonable accommodation, then they could offer a reasonable alternative, or tell you to suck it up or quit.
But if they decided that it was perfectly reasonable to hire someone else to hire someone else to do unit tests, should the customer have a say?
Since the result would be lower-quality code, they could and would object, even if they didn’t know the reason for it.
Likewise, if a standard service is unavailable during normal working hours, that needs to be rectified.
“Hey. We’re hiring for a meat packer. You’ll pack meat. Your resume says that you’re willing to pack meat. Want the job?”
“Sure!”
(a couple of days later)
“So you say that you don’t want to pack pork products?”
“It’s against my religion.”
“You lied in the interview. You’re fired.”
Is this scenario *REALLY* so very unthinkable? Actionable?
Sadly, no circumstances would surprise me in a lawsuit. But if a willingness to handle pork products is a “bona fide occupational qualification,” then the plaintiff would be foolish to expect to prevail in such a claim.
In the Target example, it may well be that there are other jobs that do not require handling pork (stocking something other than the grocery counter, for instance). And Target offered the opportunity for the cashiers to wear gloves.
Burt – were you sandbagging up all this until after vacation?
You are on a mighty impressive tear.
Dude. I’ve got more in the queue.
Good Lord… you and Will are becoming my two favorite bloggers on the whole web. I cannot stop saying how much I am loving everything coming out of Potted Plants these days. Seriously – everything.
I’m gushing.
I think the case of the Muslim clerk is very different. Target–according to my quick skim of the article you linked to–is trying to reach a middle ground with its Muslim employees. If it works for Target and for the employees, then I don’t see the big deal. I realize the article mentions some complications, and things are never really that clear cut. Still, it’s not as if the customer has the right to insist that his or her cashier be Muslim.
There was a New Mexico case where a wedding photographer (not entirely sure she was in business for herself, think she was) refused to do a gay wedding and was sued successfully for civil rights violation http://www.scottfillmer.com/2008/07/06/christian-photographer-refused-gay-wedding/
Per this link http://www.nyclu.org/marriageFAQ#15 the same would hold true for such a business in NY.
I’m totally ok with the government (at whatever level) setting whatever standard of service it wants as a condition of employment. Ditto with Target. But a sole proprietor / freelancer? Not as sure.
I mean, I see why it would be within the law – she couldn’t refuse to do a wedding because they were black, for instance. Though, I’m also of the opinion that a freelancer *should* be able to refuse the job for that reason.
This is one of those cases where I am undecided, too. It offends me personally that a freelance photographer would refuse to work for a gay couple because they were gay.
Still, I imagine when we talk about what the law should say, like you, I’m uneasy with requiring the photographer to do it.
It’s quite early here, so at first I misread that as a freelance pornographer refusing to work with gays.
I think I still come to the same conclusion.
To my mind, this is really no different from a doctor who is personally opposed to dispensing contraception for unmarried couples needing to choose an appropriate place to work. Probably shouldn’t become an Ob/gyn, and definitely shouldn’t work at Planned Parenthood.
I appreciate that the clerk in question is attempting to avoid acting in a discriminatory manner, but her refusal to issue licenses increases the costs to her employer (the city, and thus its taxpayers) and causes inconvenience to citizens who should be able to access the city’s services without having the accommodate the personal preferences of an employee hired to provide them.
Yes, I think that it’s very much like the doctor asked to dispense contraception; the moral-professional conundrum is the same.
The imperatives between a professional dispensing a service and the government dispensing a service are also different — I have no right to receive any particular service from any particular doctor. As a general rule, I have no right to demand that you take me on as a patient. But I do have a right to expect and demand evenhanded, fair treatment from the government.
On the other hand, consider that these clerks are elected governmental officials rather than private employees, and they were holding office at the time that the laws governing their conduct changed. So it’s possible to say that they signed up to do duty “X” but later were asked to do duty “Y.” Which is a fair distinction — until they stand for re-election, knowing that duty “Y” is now on the books.
is it so different for a pharmacist? Many professions have codes of conduct, wherein one should not compromise the care of the patient because of your own beliefs.
In the case of doctors – and I think pharmacists as well – they cannot compromise care, but they can refuse certain services so long as they refer you to someone that will perform them.
There have been cases of pharmacists refusing to dispense emergency contraception, believing it to be an abortifacient. In some situations they “found” another pharmacist to dispense the medication, but not until a change in shift, thus substantially lowering the efficacy of the time-sensitive medication.
I consider this a similar dereliction of professional duty to the other actions discussed in this thread.
I got into this argument at Redstate (full disclosure: banned) a million years ago about the “right” of the pharmacist to not stock certain medications that s/he finds morally problematic.
We’re not talking about stuff that you can get everywhere from 7-11 to Burger King to Wal-Mart.
We’re talking about products that you need a particular license to sell and without this license, you will go to jail if you try to sell it.
Moreover, we’re talking about products where if you try to purchase them without explicit instructions to do so from a medical doctor, you will go to jail if you try to buy it.
Moreover, getting a license to sell this stuff is a non-trivial issue. Trying to get one of these licenses is fraught with denial points and, I’m sure, points where messing up can land you in, you guessed it, jail.
So it’s a product that you can’t buy without a note, you can’t sell without a license, and if you try to then you will go to jail.
It’s a bit late to be making arguments about human liberty at this point in the process.
I recall those. It seems to be that in most cases this can be rectified by a pharmacy guaranteeing to be able to fill that particular prescription, and the doctor only doing business with those pharmacies.
If you’re an agent of the state, you have to carry out the state’s laws. A warden can’t absent himself from executions.
The real question will be when we make everybody an agent of the state who’s licensed by it: doctors, pharmacists, private adoption workers. Leviathan eats civil society.