The Corner

Law & the Courts

Clerical Error

A county clerk in Kentucky is refusing to issue marriage licenses in order to avoid issuing them to same-sex couples. Ed Morrissey writes, “One might sympathize with Davis on her religious objections to same-sex marriage, but that doesn’t give her the authority to deny it if it is lawful. . . . Accepting office in government means upholding the law. If that conflicts with Davis’ religious beliefs, then she should resign and find other work.” I think that’s a little too broad. I prefer Ryan Anderson’s way of thinking: Clerks with objections to same-sex marriage should be accommodated to the extent it is possible without denying anyone a license to which courts have ruled he is legally entitled. 

The law requires a reasonable accommodation that does not place undue hardships on the employer—in this case the government. Saying your religion requires your entire office to stop issuing marriage licenses to everyone, while perhaps a sincere belief, cannot be reasonably accommodated without placing undue hardships on the citizens unable to receive their licenses in their county and forced to drive to another.

That the clerk in Rowan County couldn’t be accommodated does not mean that no clerk should ever be accommodated. . . .

North Carolina provides a great example. The state legislature earlier this year passed a law that protects magistrates who object to performing solemnizing ceremonies for same-sex marriages and clerks who object to issuing same-sex marriage licenses. It also makes clear that no one can be denied a marriage license, but magistrates or clerks could recuse themselves from the process behind the scenes should they have sincere objections to same-sex marriage.

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.

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