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As Gay Marriage Spreads, Clerks Take Sides

by Scott Stiffler
EDGE Media Network Contributor
Thursday Jun 19, 2008

After California's dramatic and sudden move to gay marriage, the sight of thousands of couples celebrating outside city halls from Ukiah to San Diego muted the larger picture nationwide--and indeed, around the world: With domestic partnerships, civil unions and marriage equality becoming increasingly commonplace, momentum is slowly shifting from the courts, legislatures and ballot boxes to an unlike place no one had considered before: The bland, bureaucratic offices of civil-service clerks.

In California, and in Europe, civil employees are using a Kafkaesque form of civil disobedience. Exploring the possibility of opting out of facilitating ceremonies for gays and lesbian couples, some of them are end-running the issue all together by eliminating all marriage ceremonies for straight or gay couples.

The situation is similar to the controversy over some pharmacists who refused to dispense RU486, the "day after" abortion pill. In this case, their position met with both victory and defeat in a variety of court cases. In various jurisdictions, the courts ruled without considering religious or moral protests against abortion.

Same-sex marriage opponents cite religious and moral objections. But they also point a uniquely bureaucratic argument that they hope seems more reasonable in budget-constrained times: Increased demand created by same sex unions place an unreasonable strain on current resources.

When Clerks Object
Shortly after the California Supreme Court overturned the state's same-sex marriage ban on May 15, San Diego Country Clerk Gregory Smith anticipated that some clerks in his sprawling jurisdiction would object to helping facilitate same-sex marriages. In a surprise announcement, the clerk of one of the state's largest counties indicated he could give employees the option of declining to participate.

Even though none of the 115 employees had actually yet to make such a request or voice concern, Smith's speculative comments elicited immediate reaction. Government officials clarified policy and criticized Smith's comments.

"This is a civil marriage that civil servants have a responsibility to provide," San Francisco Mayor, Gavin Newsom told Reuters. "So for civil servants on religious grounds to start passing judgments, they are breaking the core tenet of what civil service is all about."

In the most populous and important county in the state, Los Angeles County, acting Registrar/Recorder/County Clerk Dean Logan assured the Daily Breeze that "all county employees would fully comply with the ruling."

Government employees have a legal responsibility to treat everyone equally. Religious employees, on the other hand, are protected by the constitutional right of religious freedom and are not required to perform any duties unless they wish to--including presiding over marriage.

The distinction between a public service employee and a cleric in private service to a religious denomination is a crucial one to remember and maintain, says, Lambda Legal Senior Counsel Jenny Pizer, who helped argue the California marriage litigation before the state's highest court. "The employment rules require accommodation of religious beliefs--and that's an important principal," she says. "But the duty to accommodate does not go so far as to authorize public employees not to do their jobs or do their jobs in a discriminatory manner."

Freedom to Marry Executive Director Evan Wolfson, accuses officials eager to accommodate such requests of indulging in a policy "misguided and hypocritical. Certainly," he adds, "no religious or church official should be compelled to perform any marriage ceremony they do not wish to perform. And I would support their constitutional right not to do that. But we're talking about government employees here. People who step into a job like that should perform their job without discrimination."

The first duty of government is to treat all members of the public the same, adds Pizer. Various local public officials quickly repudiated Smith's initial statement. But Pizer sees Smith's statement as an isolated incident, made in the heat of the moment immediately after the decision; nor was it repeated. "There has been a clear communication through government channels that public employees may not opt out of doing a certain aspect of their job," she says.

The Los Angeles Times reported that Logan said that supervisors in his department had asked him to consider "devising procedures for county workers who may be uncomfortable officiating same-sex marriages." Logan indicated an initial sensitivity to such requests. But he speculated that he probably wouldn't "expect that we would put employees who were uncomfortable in that situation in a position to do that. It's an issue that we want to be sensitive to. I'm confident that we have sufficient staffing and resources that if that's an issue we can compensate for that."

After that quote appeared, however, the Los Angeles Times retracted that quote and apologized. Paul M. Drugan, the executive assistant to the Los Angeles County Registrar, told EDGE in an email that the quote was in response to a hypothetical question posed by the reporter.

Drugan wrote that the registrar for the sprawling county categorically expects everyone in the jurisdiction--and all over the state, for that matter, "policy to uphold the constitution of the State iof California and we require employees to provide services to all of our customers. If they refuse to do so they will be disciplined."

Furthermore, Drugan pointed that all of the deputy civil marriage commissioners are volunteers. "If, for any reason, they refuse to marry any couple they are thanked for their service and removed from the program," he wrote, adding that the registrar is "happy" to be marrying gay couples.

Opening a Door to Questions
Does that mean that a county clerk could re-assign a clerk who refused to perform same-sex marriages for personal reasons? And if he did, wouldn't that be allowing a public employee to flout the law? To give the example that comes most readily to mind, what if that clerk objected to a mixed-race marriage? Or a Christian marrying a Muslim?

British civil servant Lillian Ladele, brought the issue into sharp focus when she asked to be exempted from performing gay marriages to the Central London Employment Tribunal. "My Christian conscience prevents me becoming an active part in marrying a gay couple," Ladele told The Tablet, a British Catholic magazine. "I am not trying to prevent such marriages taking place, because I have many colleagues who would be prepared to do that."

Ladele's request was made after a period in which she avoided same-sex unions by having others in her Islington office do the work -- until the government began enforcing a law which the Catholic News Agency notes "overrules religious objection to gay marriage." As a result of her continued refusal to facilitate LGBT marriages, Ladele saw her salary reduced and she and was prevented from celebrating any kind of marriage.

Elsewhere in England, the BBC News reports that "Some Christian registrars fear their lives will be made a misery because they do not want to conduct same-sex marriages."

At Ladele's case, Kent Council Registrar Elizabeth Thatcher testified about "an unnamed colleague who feared she could be 'vilified' as a result.'" Thatcher also spoke of intimidation by the Islington Council in London against anyone who voiced objections to facilitating in same-sex partnerships, which the United Kingdom has recognized since 2004.

Thatcher said she had "heard" of at least one Christian objector forced to resign "But," she added, "I know of others who have been accommodated." She claimed that that person wanted to remain anonymous "because she could be vilified or the authority put under pressure to remove her."

Ladele also testified that she's experienced so much resentment and hostility that she was forced into choosing between her religion and her job. What she didn't mention is that she received legal advice and support from an anti-gay marriage group. Some have suggested that the organization put her up to her very public objection.

Next: Hail Mary Pass: No Marriage for Anyone


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