No, Clerks Don’t Have a Religious Right to Deny Marriage Licenses to Gay Couples

Dec. 1 2014 8:30 AM
By Mark Joseph Stern
Mark Joseph Stern is a writer for Slate. He covers science, the law, and LGBTQ issues.

Gay marriage is now legal in a lot of states with a lot of residents who really hate gay people. Some of those residents are tasked with granting marriage licenses in their official capacity as clerks or magistrates. What happens when a gay couple asks an anti-gay clerk for a marriage license that they are legally entitled to? Does she have a religious right to turn them away?

In October, the Alliance Defending Freedom—a far-right group dedicated to legalizing homophobia and criminalizing homosexuality—issued memos advising clerks in Virginia and Oklahoma that they are legally empowered to refuse service to gay couples. (Marriage equality recently became law in both states.) Now Americans United for the Separation of Church and State, usually abbreviated as AU, has fired back with its own memo, asserting the exact opposite: that clerks have no right to rebuff gay would-be newlyweds and that gay couples have a legal right to be free from such discrimination. AU’s memo is six pages long. But the ADF’s arguments are so fatuous and untenable that they could probably have been dispensed with in a paragraph.

The thrust of the ADF’s case is that forcing clerks to issue marriage licenses to gay couples qualifies as religious discrimination, and thus violates the free exercise clause of the First Amendment. This claim verges on self-parody. In a famous 1990 case, the Supreme Court ruled (in an opinion written by Justice Antonin Scalia) that “the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability.” In other words, the First Amendment doesn’t protect your right to disregard a law that forces you to violate your religious beliefs, so long as that law wasn’t intended to hamper your religious practices. Since nobody (well, no reasonable person) is arguing that marriage equality is actually just a furtive effort to persecute Christians, the free exercise argument is ludicrous on its face.

There’s also something repulsively hypocritical about the ADF’s discrimination argument here. For years, the ADF has claimed that anti-gay marriage laws don’t unconstitutionally discriminate against gay people. These laws, the group insists, are merely designed to protect a heterosexual definition of marriage, not to codify prejudice against gay people. Now that the law increasingly treats gays and straights equally, the ADF has suddenly decided to expand its definition of discrimination. In the group’s revised view, barring gays from marriage isn’t discriminatory—but requiring government employees to issue marriage licenses to gay couples is pure discrimination designed to victimize Christians for their religious beliefs. It’s stunning to see once-respected organization include such a crassly opportunistic argument in a public memo.

http://www.slate.com/blogs/outward/2014/12/01/clerks_have_no_religious_right_to_deny_gay_couples_marriage_licenses.html