As Gay Marriage Spreads, Clerks Take Sides

by Scott Stiffler

EDGE Media Network Contributor

Thursday June 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.

The experience of Ladele parallels the public outcry against British judge Laura Alabau. In early 2006, she refused to marry two women who later called off their wedding all together," due to the emotional trauma of the situation," reports Declaring their wedding unconstitutional, Alabau was fined by the Ministry of Justice.

After returning from to the bench after a lengthy and unexplained absence, Alabau declared herself a victim of persecution being used as a "vehicle for propaganda." Euroweeklynews wrote that a recent disciplinary ruling effectively forces her to perform a marriage ceremony for gay couples.

Some suggest that those who feel they've a right to opt out of performing their duty ought not to be in the civil service at all.

"This is not about gay marriage," says Wolfson. "The government issues marriage licenses. That is one of the duties a clerk performs, and must do so without imposing their own discriminatory agenda." Local registrars have no discretion in the matter, but are bound by the law.

Auditor-Controller-County Clerk Ann Barnett heads an office of 18 people and a multi-million-dollar budget in a sprawling county east of Los Angeles. The Associated Press on June 7 reported that she was planning to stop performing all ceremonies in a week. Barnett cited space, staff, security and budget constraints.

Stephen Jones, the head clerk in rural Merced County picked up on Barnett's strategy. He, however, later retracted his statement after coming under pressure from county officials, after he was promised more space and additional staff to accommodate the anticipated crush of gay couples.

For Barnett, the price of taking a stand has resulted in her being labeled as "a religious terrorist," a flood of hate mail and--not incidentally--relentless requests for press interviews. Barnett defended her actions to a Los Angeles Times reporter as those of "a county clerk trying to do my job. I wasn't out to make a statement."

Perhaps, but Barnett is receiving assistance from a Christian advocacy legal organization, the Allied Defense Fund. In the same L.A. Times article Barnett affirmed that her faith "affects everything" she did "It affects who I am."

Clerks Cite Other Problems to Circumvent Marriage

Kern County Supervisor Don Maben has made an effort to accommodate Barnett by exploring the possibility of more funding to address security concerns and using deputized officials from other counties to compensate for the expected workload.

Still, Maben, who has clashed with Barnett in the past over a range of issues, tells the Los Angeles Times that the issue is primarily one of abiding by policy and going through the proper channels: "She should have come to the board and said, 'What can we do to fix this problem?' Instead she made a unilateral decision and just shut everyone off."

Few have had the front-row seat in the California marriage battle of Shannon Minter, legal director for the National Center for Lesbian Rights. As lead counsel for couples in the California Supreme Court marriage case, he has a stake in seeing the decision carried out in every count.

"A long as counties treat all couples the same, we're fine with that," says Minter. Of clerks who complain about not having the resources to meet the demand, Minder says, "We take them at their word, and as long as they are treating everybody the same, there's no discrimination." That would mean that if no one is married, that clerk couldn't face charges of discrimination.

At the same time, Minter regards such techniques as part of the growing pains of implementing a new policy. He dismisses a lot of the current brouhaha as "hypothetical discussion that I don't think will be an issue": rather, it's just "initial confusion."

Massachusetts went though similar controversies when it instituted same-sex marriage four years ago. "Almost immediately, any concerns faded," Minter recalls. "These are government employees. They will do their job. We live by rule of law. No one has been hurt by gay and lesbian couples getting married."

For Pizer, this is not a new issue. She compares it to the initial reluctance to register interracial couples when that barrier slowly fell in the 1960s. Even in the private sphere, religious denominations have wrestled with marriage and divorce in a liberal society, as well as the thorny issue of interfaith marriages. Ultra-Orthodox Jews, for example, frequently come across the issue of divorce, when a man might obtain a get, or a religious divorce, which the wife refuses to recognize and sues in civil court. And Jews and Catholics, in particular, are still struggling with how much an interfaith couple can participate in religious ritual.

"This is one more example that highlights the difference between a government function and a religious one," Pizer says of California's same-sex marriage. "We have every reason to expect the same rules will apply to gay and lesbian couples who wish to marry as we've seen in the past with interracial and interfaith couples."

In the meantime, what is not on the table is the private qualms of public officials. "The functions of government need to be carried out in an equal, non-discriminatory way consistent with state law," Pizer says. Looking at the ultimately successful implementation of same-sex marriage in Massachusetts, Pizer sees eventual acceptance.

"Those who are disconcerted with the idea will see that it's not causing any disruption just as has happened in Massachusetts," she says. "Four years later, we see government operating smoothly and the general public, having gotten used to the idea, continues unperturbed. I am confident in anticipating that Californians will be just as able to perform the functions of government in a reliable, calm way as the Commonwealth of Massachusetts has."

Scott Stiffler is a New York City based writer and comedian who has performed stand-up, improv, and sketch comedy. His show, "Sammy's at The Palace. . .at Don't Tell Mama"---a spoof of Liza Minnelli's 2008 NYC performance at The Palace Theatre, recently had a NYC run. He must eat twice his weight in fish every day, or he becomes radioactive.