Imagine there are two couples in line to receive marriage licenses. One is an opposite-sex couple and the other a same-sex couple. But, only the opposite-sex couple walks away with a marriage license while the same-sex couple is told to come back when the deputy county recorder has returned to the office. This exact scenario could occur at some point in Stark County, North Dakota.
Last week Stark County's recorder, the elected public official tasked with issuing marriage licenses to couples within Stark County requested the Stark County commission excuse her from issuing marriage licenses to same-sex couples. The recorder cited "personal, deep-seated beliefs that she says really interfere with her ability to [issue same-sex marriage licenses]" as the reason for her request. Stark County commissioners granted the county recorder's request and granted the deputy recorder the authority to issue marriage licenses. Now both share the duty of issuing marriage licenses. In a July 7, 2015 Dickinson Press article, when a commissioner asked the Stark County state's attorney "if same-sex couples who come for a marriage license while [the deputy recorder] was out will be told to wait until she returned, [the state's attorney] replied that it is likely how the process will work."
Stark County's actions greatly concern us and we've let them know why we think their actions last week with respect to the recorder do not comply with the Constitution nor the Supreme Court's ruling in Obergefell v. Hodges. Government offices must be equally open to all couples, including same sex couples. County officials who have a duty to uphold the law are not able to discriminate against individuals based upon their own religious beliefs. They have a duty to impartially administer the law to all citizens.
In Obergefell, the United States Supreme Court struck down state bans on same-sex marriage as unconstitutional. The Court held that the Equal Protection and Due Process Clauses of the Fourteenth Amendment require marriage for same sex couples to be afforded "on the same terms as accorded to couples of the opposite sex." Critically, Obergefell requires that same-sex couples seeking to obtain marriage licenses be treated "equally" with different-sex couples.
The ACLU of North Dakota recognizes that religious liberty is a fundamental American value protected by the First Amendment, but that liberty has never meant that government officials can rely on their personal religious beliefs to discriminate against citizens seeking vital government services. Although county clerks have every right to advocate their personal views when acting as private citizens, public officials acting in their official capacity do not have unfettered First Amendment rights. The Supreme Court has recognized that "when a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom." Because all county officials are bound to uphold the Constitution of the United States and the Supreme Court has clarified that failure to permit same-sex couples the right to marry is a violation of the Equal Protection Clause, county officials may not discriminate against same-sex couples, whether based on their personal religious beliefs or for any other reason.
Although some officials may argue their religious beliefs must be accommodated under Title VII, that argument is misplaced. Title VII does not require the accommodation of public employees who refuse, on account of a religious objection, to perform their duties for all citizens equally. For example, courts have rejected claims for a religious accommodation under Title VII when an FBI agent refused on religious grounds to investigate anti-war activists, or when a police officer cited his religious attitudes about abortion as the ground for refusing to protect abortion clinics.
We defend the rights of all people to worship-or not-according to the dictates of conscience. As Americans, religious liberty is our birthright. Our First Amendment guarantees that no religious cleric or house of worship can ever be compelled to participate in the solemnization of a marriage that is contrary to the dictates of that faith, nor can opponents of same-sex marriage be prevented from advocating their views zealously in the marketplace of ideas. However, a public official's personally held religious beliefs are not superior to the right of all citizens to be treated equally under the law.