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County Clerks Refusing Same-Sex Couples Despite Supreme Court Ruling

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In a 5-4 decision in June of 2015, the U.S. Supreme Court made same-sex marriage legal nationwide, finding that the right of same-sex couples to marry is protected under the Due Process and Equal Protection clauses of the 14th Amendment. However, some County Clerks, primarily in the so-called "Bible Belt," are still refusing to issue marriage licenses to gay and lesbian couples.

Reasons for Refusing Same-Sex Couples

The First Amendment

While most Clerks are complying with the Supreme Court's ruling, in some counties in Arkansas, Kentucky, Louisiana, Mississippi, and Texas, opposition to the ruling is strong and emotions are running high. For the most part, Clerks are justifying their refusal to issue marriage licenses to same-sex couples on freedom of religion grounds, citing the First Amendment to the U.S. Constitution, which states in pertinent part that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..."

Resignation May Be Required

After 24 years of service, Grenada County Mississippi Circuit Clerk Linda Barnette resigned her position on Tuesday, explaining, "I cannot in all good conscience issue marriage licenses to same-sex couples under my name because the Bible clearly teaches that homosexuality is contrary to God's plan and purpose for marriage and family. [1] A day before Barnette's resignation, Cleburne County Arkansas Clerk Dana Guffey resigned her position. "It is definitely a moral conviction for me," Guffey said. "I didn't announce anything publicly or on social media or anything because I didn't want my decision to be seen as hateful." [2]

According to Sam Marcosson, a constitutional law professor at the Louis D. Brandeis School of Law at the University of Louisville, Barnette and Guffey did exactly what they should have done and like-minded County Clerks should do the same or face the consequences. "If it means that you simply cannot fulfill your duties because of your religious beliefs, what is required of you is that you can no longer hold that office," Marcosson said. [3]

Some Have Stopped Issuing Marriage Licenses All Together

Clerks in Casey County and Rowan County, Kentucky, have decided to simply stop issuing marriage licenses to any couples, gay or straight, for the time being. Rowan County Clerk Kim Davis told the Courier-Journal that she stopped issuing all marriage licenses due to her "deep religious convictions" against same-sex marriage and Casey County Clerk Casey Davis explained his decision to stop issuing any marriage licensed to anyone by saying, "I have always tried to be fair to everyone and treat everyone the same. If I can't do it for one, I can't for the other."[4]

Directing Same-Sex Couples to Designated "Non-Objecting" Staff

In at least some counties with objecting Clerks, same-sex couples have some hope of getting marriage licenses immediately if their county offices happen have other non-objecting personnel available to assist them with their applications. In Harris County, Texas, for example, same-sex couples are being directed to a Deputy Clerk who does not have religious beliefs against them marrying in order to get their licenses [5], and the same thing is quietly happening in offices across many Southern states. In San Jacinto County, Texas, while Clerk Dawn Wright says she objects to issuing marriage licenses to same-sex couples “for religious reasons and as a matter of conscience,” one of her six Deputy Clerks doesn't object and that person has been designated to help gay and lesbian couples obtain their marriage licenses.[6]

Language Problems on Existing Forms

In addition to First Amendment claims, some Clerks are claiming that they can't begin issuing same-sex marriage licenses until the state-issued forms have been revised to use language that can accommodate same-sex couples. [7] While it's certainly true that current forms used in the issuance of marriage licenses routinely use gender-specific terms such as "husband" and "wife," most other states appear to be managing with the existing forms while they await the arrival of revised forms from the state. Many states even began preparing for the legalization of same-sex marriage months before the Supreme Court's ruling came down.

Non-Compliant Clerks Risk Being Sued, Fined, Fired, and Jailed

Constitutional law experts and legal analysts on both sides have weighed in on the subject. The one thing that both sides can agree on is that County Clerks who refuse to issue marriage licenses are risking civil and criminal penalties as well as official misconduct charges, which could land them in in court, in jail and/or out of a job. These risks prompted Mississippi Attorney General Jim Hood, who told his County Clerks that the ruling was not yet effective last week when it was handed down, to issue a letter to Clerks in all of his 82 counties warning of the possible repercussions for refusing to issue marriage licenses to same-sex couples. [8]

No to Same-Sex Marriage, Yes to Same-Sex Divorce?

One thing that remains unknown is whether counties refusing to issue marriage licenses to gay and lesbian couples will allow same-sex couples to file for divorce. The argument could be made that if one believes that same-sex marriage is wrong based on his or her religious beliefs, then assisting in dissolving a same-sex marriage would be right. If this is the case, for better or worse, same-sex couples may actually find fewer obstacles ending their marriages than starting them.

In reality though, the trouble gay and lesbian couples are encountering in getting marriage licenses in certain counties most likely means they'll have trouble filing for divorce in those counties as well. Since divorce is the procedure used to end a legally valid marriage, it would put Clerks in a precarious position if they allow same-sex couples to file for divorce while at the same time asserting that their marriages never existed in the first place.

More information on same-sex divorce is available here.

References

[1] Same-sex marriage fight turns to clerks who refuse licenses by Claire Galofaro and Adam Beam
[2] Arkansas County Clerk to Resign over Same-Sex Marriage, Associated Press
[3] Same-sex marriage fight turns to clerks who refuse licenses by Claire Galofaro and Adam Beam
[4] Gay Marriage Ruling Defied by Some Ky Clerks by Andrew Wolfson
[5] Clerks in Harris Co. Refusing to Process Same Sex Applications by Doug Miller, Josh Chapin, KHOU 11 News
[6] Some Counties Withholding Same-Sex Marriage Licenses by Ally Mutnick
[7] Hood County Will Issue Same-Sex Marriage Licenses, but Clerk Won’t by Anna M. Tinsley
[8] Letter from Mississippi Attorney General Jim Hood

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