By Bob Allen
Government clerks have no legal right to refuse to issue a marriage license to same-sex couples in a state where gay marriage is legal, Americans United for Separation of Church and State said in a legal memorandum released Dec. 1.
The memo to government officials in states where same-sex marriage is legal counters legal memos sent out earlier by the Alliance Defending Freedom advising that clerks with religious objections to gay marriage can lawfully delegate the responsibility to issue a license to a deputy or assistant who doesn’t have the same objection.
Americans United said nothing in the law “gives government clerks the right to an exemption from the legal requirement that they treat same-sex couples no differently than different-sex couples.” The Washington-based church-state watchdog group offered to represent for free any government employer sued by a worker after denying such an exemption.
“Government’s first duty is to treat all people equally,” said AU Executive Director Barry Lynn, an ordained minister in the United Church of Christ. “If same-sex marriage is legal in a state, clerks and municipal officials must serve all comers. It’s part and parcel of doing your job.”
The legal memo says a government employer that allows clerks to discriminate against same-sex couples risks violating both the Establishment Clause of the First Amendment and the 14th Amendment guarantee of equal protection under the law.
Asking a same-sex couple to move to another counter or office, it says, unduly burdens the applicants in both practical and “dignitary” ways.
“Not only would the couple face the logistical harm of undue delay, but they also would be subjected to the sting of unequal and inferior treatment,” the memo says.
The Alliance Defending Freedom memo argued that requiring clerks to issue a marriage license against their conscience would violate Title VII of the Civil Rights Act of 1964, which requires employers to “reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.”
“No one in America should be forced to choose between following their conscience and serving his or her employer,” said Kellie Fiedorek, litigation staff council for the ADF. “The First Amendment protects the right to basic freedoms, including the freedom to live and work according to one’s conscience. These freedoms are guaranteed to every American, including those issuing marriage licenses.”
Ayesha Khan, AU’s legal director, said ADF “is employing a bogus religious freedom argument to shield a crude form of discrimination, bigotry and bias against LGBT Americans.”