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Wednesday, September 28, 2011

Gay Marriage and Religious Freedom

This story out of Ledyard, New York, which is a very small town just up the lake from Ithaca, is interesting for a number of reasons.  The gist of it is that the town clerk, a self-described "Bible-believing Christian," believes that sigining the marriage licenses of same-sex couples would violate her religious convictions.  Since New York law requires her to issue those licenses, she has delegated the task of signing them to a deputy clerk.  As a result, marriage licenses are only available in Ledyard with a prior appointment.  A lesbian couple moved into town from Miami, sought a marriage license and then refused to wait for an appointment, preferring instead to file a lawsuit.  On one side is People for the American Way, repsresenting the couple.  On the other side is the Alliance Defense Fund.  

So, first off, this is one of those stories that makes you just sigh, for lots of reasons, which I won't go into because they seem pretty obvious.  What the story does bring out, though, is something that will be very different about same-sex couples' push for civil rights from other civil rights movements we've seen over the past few decades.  

Although there have always been churches and religious institutions that have espoused racial hatred or supremacy or separation of some sort or another, and although some of the arguments people raised in favor of Jim Crow were religious, they were (and even more so now, are) mostly on the fringe of both society and Christian thought.  The bulk of opposition to civil rights was rooted in uncritical tradition and custom.  In addition, there was a critical mass -- perhaps the bulk of -- Christian theological opinion on the side of civil rights.

What we see with same sex marriage is somewhat different.  There are religious people (myself included) who favor marriage rights for same-sex couples.  And most of us can even make religious arguments in favor of our position.  But the center of gravity of the pro-marriage position is decidedly secular.  On the other side is an opposition that is expressed in almost purely religious terms.  And, while I disagree with their theological arguments on theological grounds, I can admit that their position represents the historical mainstream of Christian thinking on homosexuality, one that has prevailed for many, many generations.  However one wants to characterize the views of anti-same-sex-marriage advocates, it is impossible to relegate it to the fringe of Christian thought, even contemporary Christian thought.

So this sets up a dilemma for same-sex marriage rights that civil rights in other contexts have not had to confront as seriously.  Of course,there have been individuals who have claimed a right to discriminate on the grounds of race or, more commonly, gender, for religious reasons.  But those claims have been easier to sideline.  The fight over marriage is different.  Even though it is clear that public opinion is moving in the direction of acceptance of same sex marriage, my sense is that opposition is likely to remain entrenched among religious conservatives.  

On its face, the Ledyard town clerk's solution -- delegating the task she finds objectionable to a deputy clerk who is willing to perform the duty -- seems to strike a reasonable balance.  Same sex (and straight) couples in Ledyard get their marriage licenses, and the town clerk can keep her job while remaining faithful to her religious convictions.  I can certainly understand the offense that the plaintiffs took upon learning the reasons for the requirement that they make an appointment to receive their marriage license.  But, since a straight couple has to go through exactly the same appointment process, I am struggling to understand the deep principle that is at stake.  

The general counsel of PFAW says that the town clerk's religious convictions don't give her "the right to use them to relieve herself from doing a major part of her duties."  I understand what she is saying as a legal matter -- thanks to Employment Division v. Smith, the legal entitlement to special treatment under the Free Exercise Clause has been dramatically narrowed.  But I'm more interested in the substance of the matter.  What is the genuine harm of allowing the town clerk to delegate this task, as long as the task gets done, albeit with some delay, and as long as it gets done equally for same-sex and straight couples?  

[In response to comments on this site and over at Commonweal, a couple additional thoughts:  I don't want to minimize the relevance of religious opposition to African American civil rights.  But the southern churches that opposed civil rights, while certainly not on the fringe of southern society, were certainly on the fringe of global Christianity.  That is to say, their opposition was rooted in their local situation, which distorted their theological commitments in ways that their correligionists in other parts of the country and world did not accept.  So I think that situation is very different from the problem that Christianity has with homosexuality today.  The Christian objection to homosexuality is far more mainstream within Christianity.  Second, I want to make clear, as I did in the comments here, that my question is really focused on the delegation issue, because that is what the PFAW appears to be objecting to.  The delay certainly complicates this question, and my question is premised on the assumption that (1) the delay is short and (2) the delay is equal for all parties seeking a marriage license.  That said, I can see a very plausible position that any appreciable delay is a harm, strictly speaking, and that, while a harm might be tolerated for the right sort of reasons (e.g., lack of resources to staff an office), it cannot be tolerated for discriminatory reasons, even when those reasons are religiously based.  In any event, in the comments, I'd love to hear people's thoughts on both issues, but I'm primarily interested in the delegation point.]

Posted by Eduardo Penalver on September 28, 2011 at 10:21 AM | Permalink


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If "carving out exemptions" is unfair, that would make a lot of laws unfair, since from the beginning some exemptions were put in place to accommodate religious practice. The stopping point is unclear. Should no flexibility be in place for parents, since some are not?

And, if the rules allow other types of conscientious objections (take abortion -- it is a matter of conscience both ways for many people, even if "God" has nothing to do with it), as is the case for military exemptions, it is unclear who isn't really covered.

My bottom line is that with such a small amount of time involved, there shouldn't be a problem here. It is not like she was on call 24/7. She had limited ours and some delegate should be available w/o a problem. In practice, this seems to be much ado about nothing much.

Posted by: Joe | Oct 1, 2011 8:54:48 AM

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Posted by: Wedding Planner Los Angeles | Sep 29, 2011 1:31:13 AM

What about all the "Bible-believing Christian" clerks whose religious beliefs preclude them from signing marriage licenses for a previously divorced person getting re-married? Or what about those clerks whose religious beliefs are offended by the people whose marriages will not be in a church?
Can they refuse to sign licenses on those bases?

Posted by: MMF | Sep 28, 2011 6:50:58 PM

opining: I said unwilling. Unable is another issue altogether; there is no animus involved; her mental state (unless it is a disability) is not involved. She simply does not wish to fulfill the duties for which she was hired. And no one cares about her opinions; they should not matter at all or else people would be deciding to shirk their duties for all kinds of reasons.

The problem with pharmacists and abortion inducing drugs is that in some locales there is one pharmacist so in that case you are out of luck.

Carving out exemptions for people who profess certain religious beliefs, or rather, who describe their beliefs in religions terms, is unfair to those of us who are not religious.

Posted by: Hatfield | Sep 28, 2011 5:55:02 PM

The reason matters; it would be a harder case if we did not know why the clerk delegated her powers to the deputy. At-will employees can be fired for any reason, except discriminatory reasons. In employment law, we usually have to apply a burden-shifting framework b/c we don't have direct evidence of animus. Here we have such direct animus. Hatfield, you say "if she is unwilling to fulfill her duties for whatever reasons, she should find another line of work." Well, what happens if she had a disability, or broke her arm or something, and needed someone else to sign? The reason matters. Here the clerk does not want to do her job b/c of illegal prejudice. As someone else mentioned, if she did not want to sign a marriage certificate for an inter-racial couple (even it premised on religion) that would not fly. She is not personally saying she agrees with same-sex marriage when she stamps the certificate. She is just doing her job. Defense attorneys, even of guilty clients, are not saying they agree with their clients' positions. A job is a job and if you have such strong personal views, for whatever reason, that you cannot do your job, then find another line of work. I agree with Jimbino that religion should get out of public life b/c as an atheist I often feel that the government prefers religion to non-religion. Religion should not be a shield to allow people to disobey the law or not do their jobs. And yes I think the Religious Restoration Freedom Act (which does not apply here as this is not the federal govt) is unconstitutional as it gives an "out" to generally-applicable laws for those with religious beliefs but not secular beliefs. As for the abortion issue and the case law that allows an "out" for those pharmacists, I will need to read that line of cases. I am slightly more sympathetic there but I concede that may not be consistent with what I have argued. It certainly does not present any undue burden if another pharmiscist fills the prescription but the reason the pharmacist is not doing his/her job is a religious one, which I have just attacked as not being a proper motivation not to do a job. Thoughts so I can help distinguish without doing a ton of research?

Posted by: opining | Sep 28, 2011 5:13:19 PM

If the clerk did this because she wouldn't sign certificates for black people, there would no discussion here (or just about anywhere). If she is unwilling to fulfill her duties for whatever reason, she should find another line of work.

Posted by: Hatfield | Sep 28, 2011 4:10:40 PM

I have no problem with the delegation, if it does not in any way delay the process for same-sex couples. If a delay happens, then that same delay must be part of the process for straight couples.

Posted by: Spike | Sep 28, 2011 3:58:59 PM

Spike — the delay applies to all couples. As I understand it, the clerk has delegated to her deputy the task of signing all marriage certificates. Consequently, all couples must make appointments to receive their licenses. I agree that a discriminatory delay, as you describe it, would be an easy case.

Posted by: Eduardo Penalver | Sep 28, 2011 3:58:01 PM

The delay is the problem.

Let's put this in racial terms, since the original post speaks of the civil rights era.

Imagine that after Loving a clerk refused to offer marriage certificates to inter-racial couples and delegated that duty to a clerk more willing to follow the law. Would it not be a due process issue that inter-racial couples would have to wait for that deputy to be available, while white couples did not? How is that different from this?

The law is that same-sex couples can marry and thus MUST have the same degree of access to the system as straight couples. To make same-sex couples, AND ONLY THEM, wait, b/c of the insistence of a public official that she cannot follow the law - for personal reasons, not policy or legal reasons - is a denial of due process to the same-sex couple.

Furthermore, this is not analogous to a pharmacist not wanting to distribute the morning after pill or similar medical procedures, since that pharmacist denies ALL women the pill, not just a select group of women.

If the County had a policy wherein any straight couple was able to walk in during working hours and receive their license, then that same policy MUST remain in place for same-sex couples. If it is changed, then it must be changed for all couples, regardless of their sexual orientation.

Posted by: Spike | Sep 28, 2011 3:54:59 PM

The delegation-as-harm question (and the even more challenging question of direct and substantial harm) is a fascinating one. But the harm cannot be the appointment requirement. I needed an appointment to get married in San Francisco when marriage laws were equal in California. There, the appointments were required because marriage equality (after years of discrimination) had created an otherwise unmanageable pool of marriage applicants.
The harm here seems to be that we know the bias motivation (rather than the practical need in the SF circumstance). (In imperfect analogy, the town is not closing the pool because we no longer want to offer recreational swimming, we are closing it because blacks and whites will be swimming together.) Here, there is a publicly acknowledged bias motivation for the new appointments policy. And the bias is one prohibited by state law. So the tension is between the state's equality and the liberty of religious persons when acting in their role as a state official. May the state official create an additional obstacle to a fundamental right for the purpose of accommodating impermissible bias in her official duties? It's hard to answer "yes" to that question. I think little accommodation is permissible here since the clerk is acting as the state not in a personal capacity. (She is not approving of the marriage or asserting it is a good one; she is asserting the legal requirements have been met.)
Now, accommodation outside the realms of protected classes (in NY) might be different. And of course, quiet accommodation is always going to be essentially invisible to the law. But this is not neutral; the state amended its laws to stop discriminating in the area of marriage law and now a state official wants to alter the (albeit minor) requirements to marriage based on the kind of discrimination rejected by the state.
The final concern, for me, is that we not pretend this is an abstract question of religious difference. That is naively ahistorical. We cannot ignore the fact that religious clerks have consistently overcome their private disapproval of individual marriages for years without feeling the need to protest. Re-marriage for divorced persons, marriages involving a pregnant woman, inter-racial marriages, inter-religious marriages -- all of these are offensive to many people of faith. Why now have some state employees discovered that this one kind of marriage is too much and worthy of protest? Because of feelings of disgust and overwhelming moral disapproval. That feeling, that animus--even where religiously inspired--is what the NY legislature rejected in passing the marriage equality law. It seems particularly inappropriate to use it as a motivation for even a modest harm of inconvenience. Allowing such creates the significant harm of state-sponsored animus in official state actions.

Posted by: ecc | Sep 28, 2011 1:31:31 PM

This case seems analogous to the cases involving physicians who refuse to perform abortions or pharmacists who refuse to fill prescriptions for abortion-inducing medications (for religious reasons). The bulk of case law and statutory law says that both have the right to decline to do so, so long as they can delegate the obligation to someone else in a timely fashion so as to not unduly burden the patient seeking the procedure or drug. As a non-religious person who strongly supports abortion rights, this seems to me to strike the appropriate balance and should be the model to resolve this dispute.

Posted by: Anna | Sep 28, 2011 12:54:17 PM

And what is the fundamental right here?

Well, marriage.

To be honest, the guy didn't even have to say WHY he's deputizing---- he could have just done it. But he said why, and if we create an expressive claim out of that additional fact, then we're asking courts to adjudicate between the expressive rights as a Christian qua Christian and those of a homosexual qua homosexual. Can we make that decision non-legislatively?

I agree (assuming you mean to imply the answer to your question is no). I'm not sure this is a problem the courts are well-equipped to handle.

Posted by: kormal | Sep 28, 2011 12:51:48 PM

This is another one of those Amerikan problems that could simply be solved by getting gummint out of the process. While I do not concede to gummint any duties other then the minimum required to maintain public order, now that the gummint is involved, granting a public functionary the right to refuse to perform her duties is an insult to me. It is an insult to maintain the posture that it is only the Christianists who have morals that guide their life's choices; there are dozens of moral compromises that I will not make, most of which keep me from performing any Amerikan gummint service at all. If I were working in her place, I wouldn't grant marriage licenses at all, since gummint-approved marriage has always been offensive to me as a single. But allowing all functionaries of gummint to deny services that are part of their jobs is no way to run a country.

We need to pay a lot less attention to the Christianists, in any case. They are totally inconsistent in their moral scruples, and, no, these "biblical" scruples have not been consistently observed historically in this country. Divorce was once looked upon as homosexuality is today. Nowadays it is the fundamentalist Christianists of the South that are the most likely to be the divorced. The bible has injunctions against bestiality, but still many of our states have no laws prohibiting it. Roman Catholics divorce and use birth control as much as Jews and Protestants do.

Religion is a total crock that should be eliminated wherever found in public life. Unfortunately, many religious practices, such as marriage and divorce as well as moments of silence, national anthems, deities on our currency, oaths of office, and even prayer, for chrissake, are not yet held to be religious exercises. I'm quite sad that I will not live to see pervasive religion eliminated from our public Amerikan life.

Posted by: Jimbino | Sep 28, 2011 12:44:37 PM

The "deputizing as an expressive harm" point is more interesting, but I think it more likely warrants a legislative fix. To be honest, the guy didn't even have to say WHY he's deputizing---- he could have just done it. But he said why, and if we create an expressive claim out of that additional fact, then we're asking courts to adjudicate between the expressive rights as a Christian qua Christian and those of a homosexual qua homosexual. Can we make that decision non-legislatively?

Posted by: AndyK | Sep 28, 2011 12:41:36 PM

I might not have been very clear, either. I'll try to make my point this way: Prior to gay marriage, the city of Ledyard had a policy regarding marriage licenses. Essentially, that policy was on-demand: heterosexual couples who wanted to get married could show up during business hours to receive one. Now let's leave gay marriage out of this. Let's say a new clerk comes in and says, "I'm too busy. These people need to make appointments." My point was that the status quo (on demand, during business hours) was presumably the product of some deliberative consideration balancing the access to the fundamental right (marriage) with the burden of providing that access (they can't stay open all the time). Therefore, I felt your question was backwards: why do we need to justify the status quo? Rather, the change in policy (increasing the burden to the access to a fundamental right) needs to be justified.

How things are and have been get the benefit of the doubt from me as opposed to change. To answer one of your hypotheticals, if a small town had a history of only being open noon-to-four, four days a week, that carries great weight. If someone came around and said that the clerk's office should only be open one day a week, they'd need to justify the additional burden that places on access to a fundamental right.

I was trying to avoid the intent of the decision-maker because I misunderstood what you meant in the question in your post -- I thought you were asking us to answer only whether the additional burden was genuinely harmful. To answer your question, yes, I think that there are reasons that would be illegitimate in the burden calculus, and personal animus is one of those reasons. It's not legitimate to base access to all on whether one personally believes that a class of individuals shouldn't have that access. It is legitimate to base it on resource constraints.

Setting aside the delay and focusing only on the deputization, my view is that it's still harmful when done for the wrong reasons, but the harm is different. We try to exclude wrong reasons from decisionmaking because, as a general rule, we think we get better outcomes that way. While concrete harm in this case is hard to see, in future cases it might not be. Wrong reasons need to be discouraged wherever they pop up. Basically a slippery slope argument, more or less.

Posted by: kormal | Sep 28, 2011 12:37:54 PM

Delay is a harm only while the application is pending. If they apply, sue, and get a license in a week, chances are they haven't even got a scheduled court date. Then it should be dismissed as moot.

And what is the fundamental right here? A fundamental right to having paperwork returned in X days? Tell THAT to the DMV, buddy.

Posted by: AndyK | Sep 28, 2011 12:37:31 PM

The clerk's office is open nine hours a week. Why can't the deputy clerk be available during those hours? I'm fine with delegating it to someone else as much as letting some one else sell a morning after pill. It's the service that matters, not who does it.

Religious accommodations often can be arraigned and should be allowed even if it requires a bit of flexibility. I'm not sure why -- given the limited time involved here particularly -- why an appointment system suddenly has to be set up. If the delegate can't be available, find someone else to fill in.

Posted by: Joe | Sep 28, 2011 12:35:41 PM

Im afraid I wasnt very clear. Im interested in both questions, but primarily in the question of deputizing for discriminatory reasons. The PFAW lawyer seems to be focused on the act of deputizing as inherenty improper. Delay complicates the question. In these very small towns, like the one where I live, these clerks are usually part-time employees and there isnt a lot of redundancy, as in the courts where you are filing your briefs. There are two parts to your reply that I want to disentangle, though. You keep saying any delay in access to a fundamental right is unacceptable, but Im pretty sure you mean any additional delay resulting from discriminatory commitments. Theres already delay built into the system, since this clerks office has limited hours. And I take it from your comments that if there had always been a policy of requiring appointments, you would not view that delay as infringing on anyones fundamental rights. So its just the shift to a delay when that shift is undertaken for discriminatory reasons that bothers you. (Am I wrong about your view?) I guess the best way to put this — and I think its a very plausible position — is that delay for the right reasons (e.g., resource constraints) is not a problem, even though it is a harm in some sense, but delay for the wrong reasons imposes a harm (delay) for improper reasons. But delay is a harm, and you can decide the question about deputizing with delay without necessarily taking a position on the deputizing point. The PFAW lawyer wants to put these two questions together.

Posted by: Eduardo Penalver | Sep 28, 2011 11:54:11 AM

Does your objection depend on the length of the delay?

No. Does your question depend on it? What if people had to wait a month? A year? At what point would you agree that it becomes "genuine[ly] harm[ful]"? A week? Two?

What if appointments are always available within a day or two?

Again, in my world, I'm not sure why we're delaying access to fundamental rights in the first place. So, no, that's not good enough.

And would you object to the policy change if, instead of a delay, the clerk continued to issue certificates on demand but simply refused to sign the certificate and had her deputy (who was always there on hand) sign it?

I wouldn't really care if the janitor signed it, so long as it's valid. But that wasn't your question. Your question was about the harm in delaying access to fundamental rights. If we strike the delay clause from your question, it changes everything. When I file a brief, the elected county clerk of courts isn't actually stamping it. She's deputized that process. That's fine with me. (Note that I'm not saying I'm fine with public officials refusing to do their duties on the basis of their discriminatory intent; but if I read your post correctly you've asked us to set aside that issue.)

You also did not answer my question, which is of course your right, but I think it's relevant to the analysis going on: Why is the burden on the supporters of the status quo to articulate the harm in the policy change?

Posted by: kormal | Sep 28, 2011 11:34:59 AM

Does your objection depend on the length of the delay? What if appointments are always available within a day or two? And would you object to the policy change if, instead of a delay, the clerk continued to issue certificates on demand but simply refused to sign the certificate and had her deputy (who was always there on hand) sign it?

Posted by: Eduardo Penalver | Sep 28, 2011 11:03:52 AM

This is why we need strong mootness / exhaustion requirements. Overly-litigious society.

If they were so itched to get hitched they would have scheduled an appointment. This is more about "beating up this guy" and less about "rights."

Posted by: AndyK | Sep 28, 2011 11:00:54 AM

Presumably the people of Ledyard enjoyed on-demand marriage certificate issuances for some time prior to this new rule. They're now deprived of that. I think it's up to them to decide whether a nondiscriminatory-but-bias-motivated policy change that decreases their access to a fundamental right is "genuine[ly] harm[ful]" or not. At some point, someone must have made this policy decision, that access to the fundamental right of marriage was so important that it should be on demand in Ledyard. The clerk's actions suggest that this calculus hasn't changed, but rather an intervening issue (the clerk's bias) should override these (again, presumably) considered policy choices. Why is the burden on the supporters of the status quo to articulate the harm in the policy change?

But to hazard an answer to your question: Having to make appointments for things is genuinely burdensome -- my life would be much easier if I could walk into a highly-qualified doctor's office and demand to be seen immediately. Instead I make appointments. I have to plan ahead. Sometimes I have to cancel those appointments because of work or what have you. As a result, my access of health care is delayed. That's burdensome. What if the person I love is dying, and I want to marry him before he passes away? Sorry, I didn't schedule an appointment so hopefully he can hang on for a week or so.

Posted by: kormal | Sep 28, 2011 10:53:47 AM

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