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Here come the lawyers

I don’t see how the squadron of anti-equality attorneys has a case in the wake of Obergfell, but they’re gonna try their best to muck things up anyway.

RedEquality

Now, conservative attorneys are gearing up to defend [government employees who refuse to recognize gay marriage because of religious objections], saying they are confident existing laws will ensure their religious freedom. But the legal arguments they are likely to make are complex, legal experts say, and could test the courts’ capacity to balance gay rights and religious freedom.

As indicated in Paxton’s opinion, there are no blanket protections for county clerks and other government employees who reject same-sex marriage in their official capacity. Instead, the strength of religious claims are considered on a case by case basis.

County clerks, for example, must prove they are refusing to issue same-sex marriage licenses because doing so would violate a “sincerely held religious belief” — a legal standard courts are accustomed to considering, said Jeremy Dys, senior counsel at the Plano-based Liberty Institute, which specializes in religious freedom litigation.

Conservative attorneys suggest these cases can be resolved by guaranteeing that the government official is offered a “reasonable accommodation.” In cases of a county clerk refusing to issue same-sex marriage licenses on religious grounds, that task could be delegated to a deputy clerk or another qualified staff member who has no objections, said Mat Staver, founder and chairman of the conservative Liberty Counsel, a national nonprofit that offers pro bono legal assistance on religious freedom issues.

“What’s happening is that you’re allowing individuals to participate in the change that occurred by the Supreme Court on Friday and you’re allowing individuals who have a religious objection to be able to have that religious objection,” Dys said.

Gay rights attorneys and civil rights groups like the American Civil Liberties Union agree that there is room for religious accommodations for government officials — so long as those accommodations do not discriminate against specific groups, like same-sex couples, by intentionally burdening them.

There is a distinction between a county clerk’s freedom to express religious beliefs and the freedom to impose those beliefs on others in “the execution of their duties,” said Justin Nichols, a San Antonio-based attorney who focuses on gay and lesbian-related legal matters.

He added that reasonable accommodations for county clerks who object to issuing same-sex marriage licenses must ensure that same-sex couples still have the ability to obtain a license in their county without delay and aren’t required to travel to another county to exercise their constitutional rights.

“That’s like saying you can always get a public school education that’s not segregated if you just go to another county,” Nichols said.

Religious freedom hawks and gay rights activists are also at odds about the rights of judges and justices of the peace to refuse to perform marriage ceremonies for same-sex couples.

In his opinion, Paxton wrote that so long as other individuals authorized to perform same-sex ceremonies are willing to conduct them, judges and justices of the peace can refuse on religious grounds; they are not outright preventing a same-sex couple from participating in a ceremony.

But others asserted that the risk of litigation for judges and justices of the peace lies in picking and choosing between performing marriage ceremonies for heterosexual couples and same-sex couples.

“A judge or justice of the peace is authorized to perform a marriage but is under no obligation to do so,” Harris County Attorney Vince Ryan, a Democrat, wrote in a memo Wednesday to the county clerk, local judges and justices of the peace. “However, once the judge elects to undertake the performance of marriages, the service must be offered to all (including same-sex couples) in a non-discriminatory manner.”

You can see a copy of Ryan’s opinion on judges and JPs here. Ryan is an unsung hero here in Harris County. Unlike a lot of County Clerks who apparently had their heads in the sand, Ryan was ready for the SCOTUS ruling and had an opinion on what it meant for the Harris County Clerk ready to go the same day. There’s no way Stan Stanart would have issued a same-sex marriage license that Friday if Ryan hadn’t forced his hand. Keep that in mind when he’s up for re-election next year.

As far as the religious objections of County Clerks and their employees go, I say public officials and employees are there to serve the public – all of the public, not just the public they approve of. If there’s someone in a County Clerk’s office that can’t bear the idea of issuing a marriage license to a same-sex couple, then they need to find another job. If the county in question can accommodate them by placing them somewhere else – Stanart brought up the example of an employee who was moved elsewhere because she objected to issuing liquor licenses – that’s fine, but if not, then they are welcome to look elsewhere. “Reasonable accommodation” does not mean “any and all possible accommodation”. If you can’t perform your job duties, someone else will.

What worries me is the possibility that the Fifth Circuit, being the giant bag of suck that it is, may decide that if it’s not an “undue burden” for a woman to have to travel to another state to get an abortion, it’s no biggie for a gay couple to go a county or two over to get hitched. I mean, as long as Travis County exists you can still get your license, right? I know, the SCOTUS decision in Obergfell didn’t allow for any such consideration, but then Roe v. Wade was a pretty clear ruling too, and look where we are now. My point is, these guys are going to make some form of argument that as long as this right is available somewhere, it doesn’t have to be available everywhere, and I fear some idiot judge will buy it.

The problem is that the standard of religious beliefs being “sincerely held” is unsustainable, as the various guerrilla actions by the Satanic Temple should make clear. If that’s all it takes, then anyone can carve out any exception for themselves as long as they believe in it hard enough. Lots of people used to “sincerely believe” that God intended the races to be separate and thus interracial marriage should be illegal because the Bible said so, no matter how much the current batch of Pharisees insists that this is totally different. The Bible will always say what people like that want it to say. That should not give them any special rights as a result.

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2 Comments

  1. Mainstream says:

    Several of the county clerks who were not yet ready to issue licenses seem to have suggested to applicants that they could travel to a different county to get their license to marry. But as a legal matter, I find it hard to imagine that a court could accept that a resident of a county must go to a different county to exercise a fundamental Constitutional right to marry. What if you did not own or have access to a car? It might be different if a clerk just stopped issuing all marriage licenses and requiring residents to go to the county next door, but I doubt that such a clerk would get re-elected by the locals inconvenienced by that approach, and I suspect that state law defines the clerk’s job to include offering marriage licenses.

  2. Michael says:

    I think the “’sincerely held’ standard is unsustainable” is the center of this issue.

    There is no free pass from the law just because you sincerely hold a belief. Your responsiblity to act within the law when performing your job does not infringe on the free practice of your religion.

    Indeed, if your job is “an elected official of the United States or any subdivision thereof”, and your actions in the performance of your job are determined by your religion, then you may find that rather than being the victim (which is how you see yourself), you’re actually impinging on the religious liberties of another.

    via wikipedia: “Freedom of religion means freedom to hold an opinion or belief, but not to take action in violation of social duties or subversive to good order,” In Reynolds v. United States (1878), the Supreme Court found that while laws cannot interfere with religious belief and opinions, laws can be made to regulate some religious practices (e.g., human sacrifices, and the Hindu practice of suttee). The Court stated that to rule otherwise, “would be to make the professed doctrines of religious belief superior to the law of the land, and in effect permit every citizen to become a law unto himself. Government would exist only in name under such circumstances.”

    We figured this out once, as a country. Believe what you want, but follow the damn law, and do your damn job.