Civil Servants, Civil Rights, Civil Duties

08/15/2015 05:37 pm ET Updated Aug 15, 2016
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The message is unequivocal: judges and county clerks must issue marriage licenses to same-sex couples and cannot refuse to furnish licenses to all couples as a means of religious protest. What should also be clear is that religion does not exempt civil servants from civil duties--nor should it, because public officials, whether appointed, elected, or merely hired, do not act as individual believers but as representatives of the state.

Yet in the wake of the Supreme Court's June ruling in Obergefell, which legalized same-sex marriage across the nation, some individuals with bureaucratic power tried to obstruct equality and justice for all by withholding marriage licenses for some (and when that failed, for all). Judges and county clerks in a number of states tried to duck the new law of the land by refusing to issue marriage licenses to gay couples earlier in the summer. (After a federal judge insisted that marriage licenses are an all or nothing proposition in Alabama--if granted to one couple, they must be given to every couple--most counties acquiesced and restarted marriage license operations for everyone.)

Over the past couple of weeks, federal judges and state oversight boards weighed in again, reaffirming that public officials cannot recuse themselves from performing same-sex marriages on religious grounds. While a Toledo judge sought what he considered a reasonable remedy--an exemption from marriage licensing altogether--the Supreme Court of Ohio's Board of Professional Conduct's decision is unambiguous: judges cannot spurn conducting all marriages to shun gay marriage. Likewise, a federal judge in Kentucky ruled this week that a county clerk could not use religion as a shield for obstructing the law. As he wrote, the clerk may believe whatever she wants, but "her religious convictions cannot excuse her from performing the duties that she took an oath to perform."

These assessments correctly dismiss the tension between religious belief and civic duty as irrelevant. To fully understand why, it's helpful to consider a less fraught issue in a more mundane venue.

Imagine that a state operates a cafeteria and Friday's lunch is a ham-and-cheese sandwich. Any number of religiously observant cafeteria workers could take issue with it--the Seventh-day Adventist whose religion requires a vegetarian diet; the Muslim worker whose religion prohibits the consumption of pork (or any food during the day during Ramadan); the Jewish worker whose religion forbids pork and the mixing of meat and milk; and the Catholic worker whose religion recommends abstinence from meat on Fridays.

All of these workers have well-founded and clearly verifiable reasons to assert that the ham-and-cheese sandwich is a religiously-prohibited lunch option. But if their job is to serve sandwiches or ring up lunch sales, they must do so. The government can't make them eat the sandwich, but the government can say that their job duties categorically include serving and selling it.

Civil marriage licenses are the same--the government can't make anyone enter into a same-sex marriage, but the government can say that the task of a judge or a clerk is to "serve and sell" the marriage license, regardless of personal religious beliefs. Dishing out the ham-and-cheese sandwich doesn't mean that the Adventist or Muslim or Jewish or Catholic employee endorses eating that sandwich for lunch on Friday. It simply means that other people have the right to eat it, and that the cafeteria worker's job is to provide it. They can critique the lunch menu, they can organize to remove it from the cafeteria, and they can protest government-run cafeterias. But when they clock in, they still have to serve and sell the forbidden to them ham-and-cheese sandwich.

The sandwich may seem trifling next to marriage, but the duties of civil servants are just that: duties. In the realm of marriage, civil magistrates historically have held power distinct from clergy, in that they regulated whose marriages counted in the eyes of the state (authority that, as Peggy Pascoe brilliantly documented, was tremendous and troubling in the case of interracial marriage). Over several centuries, as Michael Grossberg has shown, ministers acquired the power to perform marriages that simultaneously transformed both the sacred and secular status of couples. There were numerous advantages to this co-mingled arrangement, including a simplified process by which a cleric's signature operated as the state's. However, there is a significant disadvantage as well: it confuses religious marriage with civil marriage. Yet they are distinct, and they operate under radically different laws and logics.

Civil marriage confers benefits from the state; religious marriage rests within a theological framework of meaning. Hence officiants of each are performing different tasks that fall under separate rubrics of rights and responsibilities. State agents are bound to grant marriage licenses whether or not they accept same-sex marriage precisely because they are signing off on civil, not religious, marriage.

That is, the particular religious beliefs of judges and clerks are inapplicable to their duties as civil servants. A Catholic county clerk, for example, cannot refuse to allow divorced people to civilly remarry even though that too is violation of religious marriage principles. (Clergy, in contrast, have every right to refuse to officiate at a wedding that violates their religious principles.) Confusing religious and civil marriage is a route to discrimination, not to protection of religious rights. Even if a minister took a job as a county clerk, the roles would not merge. In the church, the minister would make decisions according to religious precept, deciding or declining to marry each couple according to theology and doctrine. But in the county marriage bureau, the minister would make decisions as a government official, marrying all couples who meet the standards set by state law.

In other words, while clerics can refuse to marry any couple, clerks have to marry every couple, gay or straight. And that is how it should be, for religion sets neither the lunch menu nor the terms of civil marriage.