In an Elon Law Now commentary, Professor Enrique Armijo examines developing laws aimed at allowing government officials to avoid performing same-sex marriages.
“On July 2—ten days after the U.S. Supreme Court declared in Obergefell v. Hodges that restrictions on same-sex marriages were illegal—Joe Stapleton and Jim Cato, two gay Texas men who have been a couple for 27 years, entered the Hood County Clerk’s Office to pick up their marriage license. The Hood County Clerk, Katie Lang, had been vocal in claiming a religious objection to issuing licenses to same-sex couples; Lang’s office refused the couple’s request. In response, on July 6 Stapleton and Cato filed a federal lawsuit, seeking a license and an injunction barring Lang and her office from refusing to issue licenses to other same-sex couples. The couple was awarded a marriage license the same day. And on August 17, the couple won $44,000 in attorney’s fees for the settlement of their suit.
“The Hood County suit and settlement is one of the first examples of what some view as the coming collision between the 14th Amendment-derived right to same-sex marriage on the one hand, and 1st Amendment-derived religious objections to same-sex marriage on the other. State law generally requires city or county clerks or registers of deeds to issue marriage licenses to qualified individuals—‘qualified’ here meaning those couples that are legally entitled to marriage, have completed an application, and are able to pay a license fee. Though a particular local government official may have religious-based objections to same-sex marriage, a government should be exceedingly careful in letting such an objection be the basis for the nonissuance of a license for or the refusal to perform a particular marriage, because doing so effectively makes the official’s personal religious views the law of the government for which they work, at the expense of the obligation of all governments to treat their citizens equally. But some states have sought to overcome this problem through what they’ve called ‘religious freedom’-related legislation. For example, in anticipation of the Obergefell decision, North Carolina recently passed a law allowing ‘magistrates, assistant registers of deeds, and deputy registers of deeds to recuse themselves’ from ‘performing duties related to marriage ceremonies’ due to a ‘sincerely held religious objection.’ (One little-noted provision of the law does, however, require that a magistrate willing to perform any lawful wedding be present in every jurisdiction.) Other states, such as Michigan, have passed similar laws protecting religious objections to certain adoptions.
“How might courts resolve this collision? In some instances, constitutional law is reluctant to find someone’s right has been violated so long as the same right can be exercised in another similar way. Thus, a law like North Carolina’s might enable a particular deputy clerk or magistrate to recuse from performing their duties related to a particular same-sex marriage so long as another clerk or magistrate in that same county can provide those same services; under this rule, the issue would only arise when a county clerk or head magistrate instructs all of the public officials in their office to not issue licenses or perform same-sex marriages, as was allegedly the case in Hood County, or in Pike County and 12 other counties in Alabama, which declared they would not issue marriage licenses of any sort. Importantly, marriage as a religious union defined by particular churches or denominations, as distinct from civic marriages and their accompanying requirements imposed by state law, should not change post-Obergefell; a Jewish couple cannot use the First Amendment to force a Catholic priest to perform their marriage if the priest’s religious obligations would forbid it, and the same would be true if a gay couple sought to force a minister who did not believe such marriages to be consistent with his church’s teachings. And of course, if a public official has a bona fide religious objection to performing or registering same-sex marriages when the law requires him or her to do so, the official can always resign their post—as six magistrates did in North Carolina after the U.S. Court of Appeals for the Fourth Circuit found that North Carolina’s ban on gay marriage was unlawful. To paraphrase Supreme Court Justice Oliver Wendell Holmes, a county clerk may have a constitutional right to object to same-sex marriage, but he has no constitutional right to be a county clerk.”
Elon Law Now is a recurring series of law faculty insight and analysis about legal current affairs.