Cutting off Your Nose to Spite Someone Else’s Face

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With the recent extension of the right to marry to same-sex couples in California, there has been talk of a”shot in the arm to the state economy”from all of the additional business for wedding planners, hotels, florists, bakeries, and others in the wedding industry. It appears, however, that the Kern County Clerk has decided to forego part of her county’s share of that economic benefit (and more). Although the county clerk’s office will, in accordance with California law, begin issuing marriage licenses to same-sex couples beginning on June 17, she has decided to cease having her staff officiate at the wedding ceremonies (for an additional $30). To be clear, her staff will no longer officiate at any wedding ceremony, whether it involves a same-sex or a different-sex couple.

According to the L.A. Times,”[o]fficials cited financial reasons for the decision. But internal memos between a high-ranking official in [the clerk’s] office and a conservative Christian legal defense fund, published in the Bakersfield Californian this week, indicate that [the clerk] may have acted on principle rather than for financial reasons.”“Principle”appears to be a euphemism here for religious belief. The L.A. Times article quotes an e-mail from someone in the clerk’s office indicating that the clerk fully expected to be sued for stopping the practice of performing marriage ceremonies and was seeking an assurance from the Alliance Defense Fund, a Christian organization that is a staunch opponent of lesbian and gay rights, that it would defend the clerk because”our own counsel is not being of help.”

The clerk’s actions raise a troubling religious issue that the L.A. Times story broaches. Although it is impossible to separate religion completely from the political sphere:after all, many religious beliefs have secular counterparts (e.g., secular and religious beliefs that society should help the poor and needy):we should nonetheless be concerned whenever elected officials attempt to turn their religious beliefs into government policy, as appears to be happening in Kern County. To my mind, the basic question in this case is: Should an elected official be allowed to decide to stop providing a service to her constituents:and forego the related revenue raised by providing that service:to advance her own personal religious beliefs? Personally, I think that the answer to this question should be”no.”I will be interested to see how this question (or some variant of it) is answered from a legal perspective, if the clerk is, in fact, sued based on her actions.

But the clerk’s actions trouble me for another reason as well:a reason that is not directly broached by the L.A. Times story. In the L.A. Times article, Shannon Price Minter, the legal director of the National Center for Lesbian Rights, is quoted as stating that he has no problem with the clerk’s decision because it will be applied to both same-sex and different-sex couples equally. Unlike Minter, I do have a serious issue with this decision regardless of how”equally”it is applied. As my colleague Deborah Brake has explained, Minter (not to mention the Kern County Clerk) bases his remark on a less than fulsome view of equality. (Brake’s article on this issue is: When Equality Leaves Everyone Worse Off: The Problem of Leveling Down in Equality Law, 46 Wm. & Mary L.J. 513 (2004).) Even though the clerk’s actions may satisfy notions of formal equality (as articulated by Minter), the clerk’s actions nevertheless send the message that extending the right to marry to same-sex couples is so repugnant that it is better to marry no one than to be forced to marry same-sex couples. To boot, it essentially sets up same-sex couples as the scapegoat for this action when frustrated different-sex couples are inconvenienced by having to seek others to officiate at their wedding ceremonies. Are this message and this scapegoating really consistent with the spirit of the California Supreme Court’s decision in In re Marriage Cases? I think not.

-Anthony C. Infanti

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