With all the focus on Kim Davis and her crusade to stop same-sex marriage in her county, we should not overlook the fact that similar strategies are being used by other regions in the US.
In North Carolina, 32 of the state’s 672 magistrates have excused themselves from marrying couples altogether, once a duty of the office, to avoid marrying same-sex couples. Magistrates opted out as early as June, when a new religious objection law was passed. The law allows magistrates to refuse to perform a marriage, but once they do so they are then barred for performing any other marriage for six months.
In Alabama, 10 of the state’s 67 counties stopped issuing marriage licenses entirely, according to LGBT rights advocates Human Rights Campaign. Some of those recusals stem from Alabama judges’ refusal to issue marriage licenses that began before the US supreme court’s legalization of gay marriage this June.
Similarly, a religious objection law in Utah has allowed county clerks to stop solemnizing marriages, but still requires them to issue marriage licenses. That law has been praised for its balance of religious objections and LGBT rights, though it still stopped clerk’s office solemnization in two counties.
So is this practice of opting out from performing all marriages legal? Likely not.
[Columbia Law School law professor Katherine] Franke believes North Carolina’s law is unconstitutional, and some courts appear to agree that the practice is not legally supported.
An August opinion from the Ohio supreme court found: “A judge may not decline to perform all marriages in order to avoid marrying same-sex couples based on his or her personal, moral, or religious beliefs.”
We should not forget that this dead-end strategy has been tried before when in 1976, almost a decade after the US Supreme Court ruled that bans on inter-racial marriage were unconstitutional, magistrates in Winston Salem, North Carolina refused to marry Carol Ann Figueroa and Thomas Person because she was white and he was black. The couple refused to go to a different jurisdiction and it took three years of litigation before they were allowed to get married in the town in which they lived.
What is going to sink this “I won’t be involved in any marriage gay or straight and so I am not discriminating” policy is that, apart from being likely to be against the law, the straight community is eventually going to get fed up with the inconvenience they are being subjected to over an issue that does not affect them in the least.
The town of Morehead, where Kim Davis works, is interesting because it is a college town, the home of Morehead State University. Its 11,000 students and 7,000 rural Appalachian residents have had to deal with the classic town-gown clash when a more liberal university culture is surrounded by a conservative community.
In 2013, the city council approved a Fairness Ordinance that extended discrimination protections to gay, bisexual and transgender people for employment and housing after several gay and lesbian students were denied off-campus housing, according to a spokeswoman for the Rowan County Rights Coalition.
But cracks are starting to show in the relationships that have built up over the years. Several business owners in Morehead declined to discuss the issue for fear of upsetting either side.
Nashia Fife, secretary-elect of the county’s rights coalition, said nerves are fraying. “It’s being seen as personal and it’s really not.”
The day after Davis was jailed, her husband Joe called for a boycott of the university because of its embrace of gays and lesbians.
Morehead State President Wayne Andrews said elected officials should obey the law and do their jobs.
I wonder how long it will be before the residents of that town get fed up with Davis for polarizing the community with her grandstanding.
These types of actions should be seen as the last-ditch maneuverings, in which opponents of granting equal rights to the LGBT community, rather than accepting the inevitable gracefully, are going to go down kicking and screaming, throwing up one petty roadblock after another in order to validate their sense of being persecuted for their beliefs.
Reginald Selkirk says
Because “balance” is so important. We should always balance fairness with bigotry.
Gregory in Seattle says
Some decades ago, the Washington State Bar Association issued a ruling saying that while judges may or may not chose to officiate marriages, they must do so without prejudice. That is to say, if they are willing to officiate for a white couple, they are not allowed to refuse to marry a black or interracial couple. Any judge that showed a pattern of discrimination would be disbarred which, under state law, effectively removes them from the bench. (In Washington, judges must be members in good standing of the Bar Association.) When Referendum 74* was being campaigned, the Bar Association updated this earlier ruling to include same-sex couples: if a judge does marriages, they must not discriminate against same-sex couples or else. A number of judges stopped doing marriages altogether as a result, and there was one judge in central Washington who was censured, but by and large, the threat of losing their job seems to have worked.
* Our Legislature passed marriage equality in January, 2012, the first state legislature to do so without a judicial order hanging over their heads. Bigots immediately called a referendum on the law, which passed in November 2012 by a solid 7.4% margin.
Similarly, a religious objection law in Utah has allowed county clerks to stop solemnizing marriages, but still requires them to issue marriage licenses.
Doesn’t “issuing” include the county clerk to certify that the couple are who they say they are and that they meet the legal requirements? ‘Cause, that should be all it takes; I still don’t understand why the extra step of “solemnizing” is necessary.
Eubeen Hadd says
Solemnizing means to perform the actual marriage ceremony.
Nick Gotts says
Well, it’s surely what Jesus would have done.
Nick Gotts, #5:
Well, it is pretty basic Sermon on the Mount stuff. “And if the Man prevents your right hand from harassing gay people, then your left hand won’t give anyone marriage licenses. And if people complain, fuck ’em.”
Well aren’t I just proud as fuck of my adopted home state for leading a bigotry fueled charge against basic civil rights, yet again. Oh wait I most certainly am not.
Would it shock you to hear that Davis is already violating the judges order?
left0ver1under, #*: The Guardian reports that Rowan County deputy clerk, Brian Mason filed notice with a Kentucky district court alleging that Davis, “may have altered forms used in the marriage licensing process, raising questions over the validity of licenses issued in the county.”
I’ve been reading about this for several days now, and I’m having trouble seeing how this can be a source of trouble. Once the marriages are solemnized and the relevant documents filed, how are those marriages going to be declared invalid?
First, the only ones going to have standing to bring this issue to court will be those businesses and government agencies who give benefits to married couples; but it seems unlikely to me that the benefits managers are right now filing “Rowan County, Kentucky, in 2015” in their memories so they can dredge this up later.
And even if they do, I can’t imagine the relevant courts or the state’s executive authority are going to say, “Egads! You’re right! The papers don’t have the right magic words printed on them! This is no true marriage!” If they do anything, they are going to do is check to make sure the couple met the legal qualifications at the time of their marriage, which is what the license is supposed to indicate.
Personally, if I were the judge and if I were trying to get this issue forgotten as the sordid footnote in history that it is, I’d just ignore it until it really does become a problem. Which is what I think the judge really had in mind when he “warned” the couples before they had to assume the risk the licenses weren’t valid; I suspect he doubted at the time it was going to be a problem.
But then, I may be wrong; I am often surprised at the unexpected wonders of modern civilization.