09 December 2014

Legal Memo for US Clerks on SSM

ADF Memo
Some states in the U.S. may have been forced by unilateral decision of judges to declare gay marriage legal, but it does not mean that clerks or magistrates in those areas can be compelled to go against their religious beliefs.

According to the Alliance Defending Freedom (ADF) the right not to act against one's religion is something that was enshrined in the American Constitution and they are entitled to follow what their faith dictates. The legal legal memos issued by ADF advised Virginia and Oklahoma clerks responsible for issuing marriage licenses that they do not have to issue certain licenses where doing so conflicts with their religious or moral beliefs.

The counsel is similar to that which ADF provided previously in legal memos for officials in Maine, Maryland, Minnesota, New York, Rhode Island, and Washington. The memos advised officials who have conscience-based objections to issuing certain marriage licenses that they can lawfully delegate responsibility for issuing those licenses to deputies or assistants who don’t have the same objections. The same is true for officials in Virginia and Oklahoma.

“No one in America should be forced to choose between following their conscience and serving his or her employer," said ADF Litigation Staff Counsel Kellie Fiedorek. "The First Amendment protects the right to basic freedoms, including the freedom to live and work according to one’s conscience. These freedoms are guaranteed to every American, including those issuing marriage licenses."

The legal memos explain that the government can respect the faith and conscience of officials while providing no impediment to carrying out the law. As the memos state, clerks whose sincere religious or moral beliefs prevent them from issuing certain marriage licenses "have the ability to appoint a deputy to perform that task" under state law. In Virginia, a clerk can also ask a judge of the circuit court if no deputy clerk is available.

"This should resolve the situation and facilitate the interests of all parties," the memos explain. "Should a clerk encounter resistance to their efforts to resolve a conflict, the First Amendment to the United States Constitution ensures that neither state nor county officials may impede clerks’ free exercise of religion."

The memos add that if any clerks face legal difficulties or would like legal advice regarding their duties as they pertain to issuing marriage licenses, they can contact Alliance Defending Freedom free of charge.