Marriage clerk targeted by gays revolts
Good..don't take their assault without fighting back!
The Fourteenth Amendment to the United States Constitution provides, in relevant part, "No state shall ... deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
Similarly, the First Amendment provides, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."
The First Amendment is applicable to the States through the Fourteenth Amendment.
A State acts through its agents.
A couple cannot enter into a marriage unless they have first secured a marriage license issued by the designated state agent.
The county clerk, an elected official, is an agent for the state with the duty to issue marriage licenses to all qualified couples. In other words, a county clerk is not a mere employee of the state.
A qualified couple has the right to go to their local office of the county clerk and apply for a marriage license. Yet, the county clerk abuses her elected office and refuses to issue marriage licenses.
The county clerk is acting under the color of law.
"The traditional definition of acting under the color of state law requires that the defendant have exercised power 'possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law,' and such actions may result in liability even if the defendant abuses the position given to him by the state." See link below for overview:
42 U.S.C. 1983 Overview
If the law allows the county clerk to delegate duties, the county clerk may do so. As an agent of the state, however, the county clerk does not have authority to deny government services to people based on the clerk's personal religious beliefs.
The United States Supreme Court held long ago that state agents (state officials) have a duty to obey federal court orders resting on the Court's considered interpretation of the United States Constitution. See:
Cooper v. Aaron 358 U.S. 1 1958 Justia U.S. Supreme Court Center
The United States Supreme Court has never ruled that state agents may disregard the law and shirk their official duties based on their own personal religious beliefs. This stringent separation between "church and state" embodied in the First Amendment exists for a compelling reason.
In the
Obergefell decision, the United States Supreme Court ruled that state laws that deprive homosexual couples of the right to marry violate the Fourteenth Amendment.
The county clerk in Kentucky, as an agent of the state, has refused to issue marriage licenses in compliance with the Obergefell decision claiming that doing so violates her personal religious beliefs. However, the state--which can only act through its agents--does not have "religious beliefs".
The county clerk in Kentucky, if allowed by state law, could have delegated the duty to issue marriage licenses to a deputy clerk. The law, however, cannot bestow upon her--as an agent of the state--the power to discriminate against applicants for government services based on her personal religious beliefs.
The governor of the state has no power to grant the county clerk the power to discriminate in violation of the supreme law of the land.
Contrary to her claim, the county clerk does not stand in the same shoes at the Attorney General for the State of Kentucky.
The Attorney General reviewed the lower court decision that the state's marriage law constituted discrimination in violation of the supreme law of the land and struck down the state law. The Attorney General, having reviewed the lower court decision, determined that the decision was correct in its application of federal law and that it would be upheld on appeal. Thus, the Attorney General--in the exercise of his informed opinion that it was unlawful under the federal constitution for the state to discriminate--used his official discretion and chose not to expend millions of taxpayer dollars to defend a discriminatory state law. The Governor, in the use of his discretion, then utilized his executive power to hire outside counsel to appeal the lower court decision and that effort failed (just as the Attorney General had determined that it would fail).
Although the Governor had discretion to hire outside counsel, the Governor does not have discretion to grant state agents (elected county officials) the right to discriminate in violation of the supreme law of the land.
Because the county clerk is not an employee of the state seeking a reasonable accommodation for her religious beliefs, but rather is an elected official (an agent of the state), her lawsuit against the Governor is frivolous. The county clerk is using an inapplicable body of law to defend the pending lawsuit against her and to assault the Governor of her state. Ignorance of the law is not a valid excuse for her misconduct.
Even if we entertain the possibility that an elected official--an agent of the state--is equivalent to an employee, the county clerk never sought an accommodation in her "employment". Instead, "acting under the color of law", she unilaterally determined that her particular county office would not issue marriage licenses. She did not seek to delegate her official duty to some other person in her office (e.g., a deputy clerk) who had no religious objections to performing the duty. She decided for the entire county that no county residents could ever get a marriage license in her county office while she remained the county clerk. Let them go somewhere else, she says ... and she says so without regard to the chaos such a system would cause if individual elected officials usurped the power to transform their counties into religious fiefdoms. Very simply, the county clerk's refusal to comply with the supreme law of the land subjects her to claims brought against her under 42 U.S.C. sec 1983.
