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Religious Tolerance logo

The U.S. Supreme Court legalized same-sex marriage (aka gay
marriage) across the U.S. in its ruling of The Obergefell v. Hodges
case from Kentucky, Michigan, Ohio, & Tennessee.

Part 54:
2015-AUGUST:
Are there limits to the allowable actions a county
clerk can take? Clerk Kim Davis in Rowan County,
Kentucky continues to refuse to issue marriage
licenses, claiming her religious freedom to
discriminate against the LGBT community.
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We use the term "gay marriage."to represent the marriage of two persons of
the same sex. We prefer "Same-sex marriage," a more inclusive term that
includes spouses with a bisexual sexual orientation, but it would make this web
site harder to find because most search engines cannot handle synonyms.
"LGBT" refers to lesbians, gays, bisexuals, transgender persons and transsexuals.
"LGB" refers to lesbians, gays, and bisexuals.

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This topic is continued from the previous essay

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Quotation from the Bible:

Deuteronomy 17:12: "The man who acts presumptuously by not obeying the priest ... or the judge, that man shall die. So you shall purge the evil from Israel. (ESV translation)

Webmaster's note: Although this passage refers to men, I assume that it would also include women. Fortunately for wrongdoers, in all countries of which I am aware with a predominately Judeo-Christian population, this biblical command is considered obsolete and not followed. People who reject the ruling of a judge are no longer executed; they are merely held in contempt of court.

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Kentucky map showing Rowan County2015-AUG-13: What actions can a county clerk's legally take (or refuse to take) when a same-sex couple asks for a marriage license?

A few county clerks across the U.S. are refusing to issue marriage licenses to same-sex couples; some of them are refusing all couples. Many articles in the conservative Christian media wrap these refusals in the cloak of freedom of the clerk's religious belief. However, there are limits to the clerks' allowable actions based on their freedom of religious belief. These limits are rarely discussed in the media.

Consider two hypothetical actions by a county clerk somewhere in the United States. One is happening in a very small percentage of counties; the other is both unreal and ridiculous:

  • The real option: On the basis of her or his religious beliefs, a clerk sincerely believes that marriage should be restricted to the union of one woman and one man. She further believes that anyone who engages in same-gender sexual behavior will spend eternity in the torture chambers of Hell. She does not want to facilitate such behavior in any way. She or he writes, speaks, blogs, and tweets about her beliefs.

    She is free to do this with impunity because of the guarantees of freedom of speech in the First Amendment to the U.S. Constitution.

  • The ridiculous option: Instead of issuing a same-sex couple a marriage license, she pulls out a gun and murders the couple. In her own defense, she justifies this action on the basis of her personal interpretation of Leviticus 20:13. She sincerely believes that it calls for a government representative to execute any couple who engage in same-gender sexual behavior.

    She would undoubtedly be charged with murder. With evidence from witnesses and perhaps television cameras monitoring the office, she would undoubtedly be convicted.

So there can be a major difference between holding/communicating a belief, and taking a discriminatory action that is based on that belief. Some actions are permitted; others are not.

The question that should be debated here is:

What is the limit on the allowable action that a clerk can take based on their sincere religious beliefs. That is, what point does the First Amendment no longer give a county clerk immunity from prosecution if she implements her belief with some form of action?

Unfortunately, instead of a dialog among people of different faiths, and none, there is only a lot of mud slinging and fear mongering.

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The answer to the limit on allowable action is complicated by a clerk's oath of office. It requires her to promise to obey the federal constitution. That includes any interpretation by the U.S. Supreme Court of the contents of the Constitution.

It is further complicated by the Golden Rule that Jesus is recorded in the Gospel of Matthew and Luke as requiring her -- as a Christian -- to do onto others as she would wish them to do onto her. If she identifies herself as a Christian and yet refuses to follow one of Jesus' prime directives, her claim for religious freedom to discriminate would be greatly weakened.

Still another complicating factor is that Ms. Davis has refused to issue marriage licenses to both same-sex and opposite-sex couples. She may believe, as have some previous county clerks, that discriminating against all couples means that she is not discriminating against same-sex couples. However, by going out of the marriage licenses busines entirely, she is refusing to fulfill a major part of her assignment. Would this be grounds for impeachment?

A county clerk holds an elected position, and thus cannot be simply fired for refusing to perform her assignments. She would have to be impeached by the state legislature. Unfortunately, the Legislature is not scheduled to be in session until early 2016, and Governor "Steve" Beshear (D) is not currently willing to call a special session to deal with this conflict.

This is a can of worms.

According to Wikipedia:

"As of 2013, the United States has 3,007 counties and 137 county equivalents for a total of 3,144 counties and county equivalents. 1

Fortunately, in the vast majority of jurisdictions, the issuance of marriage licenses to same-sex and opposite-sex couples is now a routine matter. Although there are many county clerks who object to issuing licenses to same-sex couples, they usually either perform their duties in spite of their beliefs, or pass the task over to a fellow employee in the office who is willing to do the task. In the few counties where same-sex couples are unable to obtain a marriage license, they can generally go to a nearby county and obtain a license there.

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Kentucky County Clerk Kim Davis' continues to refuse to issue marriage licenses:

Lawyer Laura Landenwich is acting for one of the four engaged couples to whom Ms Davis refused to issue marriage licenses. She said:

"None of us want anyone to be forced to change their religious viewpoint. But when you are an agent of the state, as she is as county clerk, then you need to follow the law." 2

Clerks are free to hold whatever religious beliefs that they want concerning same-sex marriage. It is their actions that may be unconstitutional.

A group member posted a cartoon to this web site's Facebook page. It shows Kim Davis dragging a very heavy cross labeled "Bigotry." Meanwhile amid rays of sunshine, a voice from the clouds -- presumably from Jesus -- said: "That's not my cross." Unfortunately, we cannot decipher the copyright notice so that we cannot obtain permission to post the image here. You will have to use your imagination.

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This topic continues in the next essay.

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. County (United States)," Wikipedia, as on 2015-AUG-14, at: https://en.wikipedia.org/
  2. John Cheves, "Clerk turns away same-sex couple after federal judge orders her to issue marriage licenses," Lexington Herald-Leader, 2015-AUG-12, at: http://www.kentucky.com/
  3. Emily C. Heath, "Religious liberty, marriage licenses, and the cost of discipleship," 2015-AUG-13, at: http://emilycheath.com/
  4. Erica Ritz, "Colo. Ruling About Religious Liberty Has Beck Demanding ‘What Kind of Country Have We Turned Into?’," The Blaze, 2015-AUG-14, at: http://www.theblaze.com/ (Article includes video of Beck's meltdown).
  5. Nick Duffy, "Donald Trump admits opposing equal marriage is ‘dead issue’," Pink News, 2015-AUG-20, at: https://www.pinknews.co.uk/
  6. Adam Beam, "Kentucky clerks to license marriages as their boss is jailed," MSN News, 2015-SEP-04, at: http://www.msn.com/

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How you may have arrived here:

Copyright © 2015 by Ontario Consultants on Religious Tolerance.
First posted: 2015-AUG-20
Latest update: 2015-AUG-20
Author: B.A. Robinson
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