As Southern clerks stop same-sex marriages, a search for compromise

As a number of religiously conservative county clerks in Southern states continue to dig in their heels and resist issuing marriage licenses for same-sex couples, some long-time advocates for marriage equality say it may be time to compromise.

The pockets of resistance in Kentucky, Texas, Alabama, and other states remain few and far between just two months after the Supreme Court’s landmark ruling made same-sex marriage a constitutional right. Still, for many religious conservatives the cultural battle now turns toward whether those with deeply held religious beliefs, including public officials, should be compelled to participate in public duties anathema to their faiths.

Legal clashes are once again looming. A religious county clerk in Kentucky, Kim Davis, has refused to issue any marriage licenses since June, defying the Supreme Court, as well as an order from the state's Democratic Gov. Steve Beshear. And last week, a federal district judge ruled that she must begin issuing licenses to gay and lesbian couples from her seat in Rowan County.

On Monday, however, United States District Judge David Bunning stayed his ruling, noting "emotions are running high on both sides of this debate" and giving Davis time to bring her First Amendment claims to the Sixth US Circuit Court of Appeals.

Most legal experts doubt she has much of constitutional case to forgo her public duties as a matter of religious conscience, but even those who adamantly reject her legal claims see reasons for American society to come to some kind of agreement to accommodate those with sincerely held religious objections to same-sex marriage.

“I would say personally, that the winners of this constitutional marriage equality business are not well advised to push our advantage too harshly or severely,” says William Eskridge, a professor at Yale Law School who has advocated for same-sex marriage for 25 years – one of the first constitutional scholars to do so.

“We would be better advised to work as gently and constructively with the public officials to work out arrangements so that legitimate couples seeking legitimate marriage licenses can still be served,” while at the same time attempting to “somehow accommodate the religious views of some of the clerks and administrators.”

This is point of policy, Professor Eskridge notes, not about what is legal or constitutional, “a point of good manners and cooperative citizenship.”

'Sit down and talk'

Though the overwhelming majority of jurisdictions throughout the country have complied with the Supreme Court ruling making same-sex marriage the law of the land, the scattered clashes have not only fostered a measure of resentment among some conservatives, who now feel forced to participate in public activities against their religious views, they have also raised serious questions about the nature and scope of religious liberty within the public sphere.

"If you get people of goodwill and good faith on both sides to sit down and talk, you end up coming out a lot happier,” says ​Mark Goldfeder, senior fellow at the Center for the Study of Law and Religion at Emory University in Atlanta, who has helped craft the state's religious freedom restoration acts. “It's good for both religious observers and for civil peace for us to shape our laws in ways that let people live in ways that are consistent with their heartfelt obligations, so long as we can find a way to make sure everyone is accommodated.”

A number of counties in Alabama also continue to refuse to issue marriage licenses for religious reasons. Alabama state Sen. Greg Albritton (R) has also proposed legislation that would end state-issued marriage licenses in Alabama altogether, leaving all couples to enter marriage contracts on their own and then simply file them with probate judges.

In Texas, Hood County Clerk Katie Lange refused to issue marriage licenses to same-sex couples after the Supreme Court decision. “The religious doctrines to which I adhere compel me to personally refrain from issuing same-sex marriage licenses,” Ms. Lang said in a statement in June. “I am grateful that the First Amendment continues to protect the sincerely held religious beliefs of public servants like me.”

Later, her office said it would provide staff to process same-sex marriage licenses. But this week, the county settled a lawsuit from a gay couple that had initially been denied a license, paying nearly $44,000 in damages.

In Indiana, a former clerk’s office employee, Linda Summer, filed a federal lawsuit alleging that she was wrongly fired last December, before the Supreme Court decision, after she asked not to participate in processing same-sex marriage marriage licenses, which would violate her sincerely held religious beliefs, USA Today reports.

But even as these cases now head to federal courts, many scholars caution that the social controversies coming from these cases could be avoided with common sense action, and sensitivity to these religious clerk’s views.

“We’ve had a very fast social change on the question of marriage,” says Robin Fretwell Wilson, professor of law at the University of Illinois and an expert in the legal issues surrounding religious liberty and same-sex marriage. “So we should want to have consideration for people who have been in these jobs for a long time, for whom their religious convictions might otherwise lead them to quit or be fired – I mean, it’s not actually good for gay rights for it to come to this.”

Professor Wilson, too, does not believe that a state clerk’s office or individual worker can legally create a “choke point” for a couple with a constitutional right to get married, claiming an unqualified right to refuse to participate for religious reasons.  

Some states have already done this, however. Delaware, which recognized same-sex marriage in 2013, expressly allows judges and other nonclergy officials to refuse to participate in same-sex marriages. And in June, the North Carolina legislature overrode Republican Gov. Pat McCrory's veto of a bill that would also allow some register of deeds workers and nonclergy magistrates to refuse to solemnize civil marriages if they hold a "sincerely held religious objection." However, if they do, they will not be able to participate in any marriage, heterosexual or same-sex, for six months. 

One path forward

Earlier this year, religious conservatives and gay rights advocates in Utah agreed to a sweeping compromise after a federal court last year already ordered the conservative state to start issuing same-sex marriage licenses.

Utah, one of the most conservative states in the nation, anticipated these issues and worked with advocates to both carve out a legal space for county clerks with religious objections to opt out of solemnizing same-sex marriages. But state law also now requires each county to make a willing substitute available for all couples during all business hours, so on one would ever be turned away on what should be a happy occasion.

Utah also became the first conservative state to add legal protections for lesbians, gays, bisexuals, and transgender people to its civil rights laws. Both the federal government and 31 other states, including every state in the South, do not include such protections.

 “I like that a lot,” says Eskridge, the Yale law professor. “I think that Utah has the only law of its kind right now, and, frankly, if a state doesn’t have a law like that, I think Lambda, the ACLU, and other groups should negotiate some kind of compromise like that.”

Kentucky’s Rowan County Clerk Davis, however, has refused even to allow any willing underlings to file same-sex marriage licenses, arguing that even this would compromise her religious beliefs.

It is likely that these contentious issues of religious liberty and same-sex marriage will again be decided by federal courts, but scholars caution that this could prolong the bitter divisions brought by the Supreme Court’s ruling and the swift cultural emergence of gay rights in the country.

 Yet many scholars continue to point to the Utah compromise as a national model for religious conservatives and gay rights activists to work through these current struggles.

 “When Utah was in the same boat as the rest of the country is in now, and they had a marriage decision that they didn’t agree to, forced upon them by a federal court [in December, 2013], what they said is, we’re going to step up and create a duty, so that everybody who presents for a marriage license in Utah gets one, period,” says Wilson, who helped advise the Utah legislature reach the compromise.

“But they also said we’re going to outsource that duty to anybody in the community who is authorized to be a celebrant – like mayors, judges, clergy, whoever – and we're going to create a process that protects objectors before the fact, before anyone shows up and is told no.”