ADF: Delaware Clerks Can Refuse to Do Job

The Alliance Defending Freedom (formerly the Alliance Defense Fund) is advising government clerks in Delaware that they can refuse to do their job and issue marriage licenses to same-sex couples based on their religious beliefs. This is, of course, absolutely false.

A legal memo issued Friday advises clerks of the peace and their deputies that provisions in state law allow them to authorize a deputy to solemnize a marriage in the case of absence or disability. The memo explains that because the state offers an exemption to clerks in these cases, it also has an obligation to exempt clerks if their conscience prevents them from solemnizing certain relationships.

“No American should be forced to give up a freedom protected by the First Amendment, and no American should be coerced to give up his or her career to maintain that freedom,” said Litigation Counsel Kellie Fiedorek. “Religious freedom is guaranteed to every American, including those authorized to solemnize marriages under Delaware law. No one should have to choose between their conscience and their job in America.”

Nope. Wrong. They can’t refuse to issue a marriage license to a gay couple any more than they could refuse to issue a marriage license to an interracial couple, no matter how sincerely they hold a religious belief that demands that they do so. No one would think for a moment that a clerk’s religious freedom would allow them to refuse to issue driver’s licenses to women or black people and that is precisely the same situation. On the job, they are the government and the government cannot discriminate in this manner. This is not even remotely controversial, nor should it be.

Comments

  1. slc1 says

    I wonder if a Delaware government clerk who follows the advice of the ADF and is subsequently given the heave ho can sue that organization for giving bad legal advice.

  2. Chiroptera says

    The part that is quoted isn’t advising the clerks to not issue licenses; it is advising them not to officiate in the solemnizing ceremony. And their reason is that the state law allows a deputy to perform these duties in his or her place in other situations, so it should in this one as well.

  3. Alverant says

    Of course the first clerk that is fired for refusing to do his/her job is going to claim to be the victim of religious persecution.

    @3 Is a deputy always available? Will every deputy be willing to perform the ceremony? What’s to prevent the deputy from using the same BS excuse to avoid doing their job? Why should they be allowed to delegate their job to someone else when they are perfectly capable of doing it themselves? It sounds like that law was there in case the clerk is sick or otherwise physically unable to do their job and not provide an escape route to those against equal marriage.

  4. Synfandel says

    Doesn’t the word “solenmize” imply ritual—probably religious ritual? It’s my understanding (subject to correction) that no one is required to perform any religious rite that is contrary to his religious beliefs. A clerk, of course, can’t refuse to license or register a legal marriage as a civil matter, but I thought that solemnization fell into the area of private religious conscience and could not be compelled? Am I mistaken?

  5. says

    “They can’t refuse to issue a marriage license”
    Im not sure thats quite what this “bulletin” is saying. It does say that the clerk has the option to authorize someone else to do issue the license. As long as the clerk is willing to do that, with minimal impact to the applicants (“Please come back next Tuesday when there’ll be someone here who’s willing to help you and spend eternity in hell”) maybe they’re in complience, while still being a complete pantload.

  6. Chiroptera says

    Kellie Fiedorek: No one should have to choose between their conscience and their job in America.

    What is she talking about? People have to choose between their conscience and their jobs all the time in America. I bet there have been times when employees in the ADF had to choose between their conscience and their job. Maybe even Fiedorek herself when she said that.

    What she really means is that no conservative evangelical Christian who is taking a stand on an issue in agreement with the ADF’s position should have to choose between their conscience and their job.

  7. leftwingfox says

    Of course the first clerk that is fired for refusing to do his/her job is going to claim to be the victim of religious persecution.

    You know, I think that’s the intent. These guys may be fishing for a test case to bring to trial to try and carve an exception through the courts on religious discrimination grounds.

  8. says

    @Synfandel #5 – Solemnizing a marriage is little more than a notarial act. The bare minimum for a civil marriage is to gather the couple and the minimum number of witnesses, take an oath from the couple that they wish to be married to one another, have the couple and witnesses sign a document, then add your own signature. No mumbo-jumbo, no hand-waving, no religious trappings of any kind. Maine, North Carolina and Florida actually do recognize this as a notarial act, and any state notary can solemnize a marriage.

    While state laws differ, notaries (and other government agents acting in that capacity) are very restricted on what they can refuse to notarize. They can refuse to notarize if a signer seems confused or unsure of what he is signing, or if the signer is unable to sufficiently prove her identity, or if the act of notarizing might otherwise violate the law (*cough* foreclosure crisis *cough*.) But every state makes it illegal for a notary to refuse notarization because of the signer’s race, or religion, or gender. I would be very surprised if Delaware allows a notary public to refuse notarization on the grounds of orientation. Assuming they cannot, it would be illegal for a clerk to refuse to solemnize a same-sex marriage that is otherwise legal.

  9. matty1 says

    If it’s a simple matter of “Bob would you mind signing this for me?” there doesn’t sound like an issue but I suspect ADF are trying to create martyrs for fundraising purposes by getting people to make a public display of not issuing licences.

  10. says

    Unfortunately, in the Netherlands, this was part of the compromise when gay marriage was first passed: civil servants that perform civil marriages were allowed to refuse to wed a gay couple based on religious conviction, and they could not be fired over it. On the other hand, the municipality was required to provide sufficient access to civil servants that are willing to wed gay couples. Recently, our parliament accepted a proposal to do away with this provision, though.

  11. matty1 says

    @11 When my brother married in the Netherlands we were told that anyone can apply to be an officiant at civil weddings (in this case the bride’s uncle). They just have to take an oath before a judge not to misuse the power and to file the relevant paperwork on time.

    Was I misinformed and in fact this is limited to civil servants?

  12. Randomfactor says

    During the brief time in 2008 when same-sex marriage was legal in California my local County Clerk stopped performing marriage ceremonies for ALL couples so her office wouldn’t have to officiate at same-sex marriages.

    I suggest that would be perfectly legal in this instance. ADF should suggest that. Piss EVERYONE off, and it’s Constitutional.

  13. raven says

    You know, I think that’s the intent. These guys may be fishing for a test case to bring to trial to try and carve an exception through the courts on religious discrimination grounds.

    Naw.

    More likely they are just trying to cause problems because they are fundie xian bigots and haters. Nothing new here.

  14. eric says

    During the brief time in 2008 when same-sex marriage was legal in California my local County Clerk stopped performing marriage ceremonies for ALL couples so her office wouldn’t have to officiate at same-sex marriages.

    I suggest that would be perfectly legal in this instance

    Choosing to not do one’s job at all may not be discriminatory against gays, but it sure as hell is grounds for firing. The ADF would lose that case without the opposing lawyer even needing to discuss the first amendment.

  15. says

    Well, I have a religious conscience thing* against using public money to pay public employees who refuse to serve the public.
     
    * Church of Nunayo Dam Bizness, Reformed

  16. says

    When my wife and I got gay-married in my homeland of Belgium (which has had gay marriage for over ten years now iirc) the official who normally performs weddings had a deputy replace her. She had the gall to tell my mother (who was at the time serving on the council and knew her quite well) “Oh, it’s really too bad, I really would have liked to officiate at your daughter’s wedding, but I just can’t do gay marriages, they just don’t seem right to me”. To my mother’s face, with an apparently complete lack of self-awareness. On the bright side, the deputy who replaced her was absolutely wonderful. She included a very moving part in her speech about the struggles that same-sex couples still face despite having the law on our side, and how she felt it was especially brave of us to make our commitment public, and that it made it all the more meaningful. I think we won out in the substitution!

  17. Pierce R. Butler says

    It’s basic semantics, people!

    If you solemn (serious; unsmiling)-ize a gay (light-hearted; carefree) couple’s relationship, then they’re not gay any more.

    And that would be mean.

  18. Michael Heath says

    “No American should be forced to give up a freedom protected by the First Amendment, and no American should be coerced to give up his or her career to maintain that freedom,” said Litigation Counsel Kellie Fiedorek. “Religious freedom is guaranteed to every American, including those authorized to solemnize marriages under Delaware law. No one should have to choose between their conscience and their job in America.”

    The most interesting question here is whether Kellie Fiedorek is sufficiently idiotic to actually believe her position is feasible.

    Reasonable people remain in a constant struggle to understand whether conservatives are stupid enough to believe the BS they spout or instead so immoral they know better and don’t give a shit about the ramifications of that which they promote. I continue to lean evermore towards effective idiocy brought on by delusion.

  19. slc1 says

    Re #19

    Apparently, the clerks in the government offices in the San Francisco bay area and Tinseltown are having a grand old time issuing marriage licenses to same sex couples in those jurisdictions.

  20. steve84 says

    Just stop electing such low level flunkies. It’s absurd that fucking clerks are elected and have any political or legal authority. This just be a job like any other. Then people who refuse to do it can be easily fired.

  21. Thumper; Atheist mate says

    It still boggles my mind that they are trying to cling on to the idea that hating teh gayz is a central tenet of their religion. It isn’t. It’s a single tangential line in a book of the Old Testament that was supposedly thrown out after Jeebus died and gave them their “New Covenant with God”. If they can eat pork and shellfish because of this New Covenant, then they can tolerate some gay people.

    Dear Fundies: It is not a fucking religious tenet, since your religion explicitly fucking says that you don’t have to follow that bit of the Babble. Now fuck off!

    /rant.

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