Arizona's legalization of same-sex marriage last Friday has led to a drastic increase in the number of marriage licenses issued, but one conservative group argues that clerks opposed to same-sex marriage shouldn't have to take part in issuing them.
In the Maricopa County Superior Court Clerk's Office, 292 marriage licenses were issued on Friday and another 184 were issued Monday, a representative says. The office averages only 98 license requests per day, making Friday's numbers almost three times higher than normal and Monday's almost double. The office doesn't typically track the number of licenses it issues each day, but did so Friday and Monday because of heightened interest.
That interest hasn't been all positive.
Last week, Jenny Pizer, an attorney who represented plaintiffs on one of the two successful lawsuits that brought down the state's gay marriage ban, predicted that backlash might come quickly.
"SB 1062 passed last year out of the belief that it was important that florists and bakers and people involved in the wedding industry should be able to turn away same-sex couples," Pizer said. "Let us not think that those attitudes have changed overnight. They are sure to come back again."
Looks like she was right. In a memo issued Tuesday and generally directed at "Arizona Clerks Responsible for Issuing Marriage Licenses," the Alliance Defending Freedom--the group Arizona Attorney General Tom Horne deputized to serve as his co-counsel in defending the state's gay marriage ban--called on clerks who have religious objections to same-sex marriage to refuse to issue licenses.
"Some clerks might believe that they face a serious dilemma: either resign their positions or violate their sincerely held religious or moral beliefs about marriage by being forced to issue marriage licenses to relationships inconsistent with those beliefs," the memo says. "But clerks, as explained herein, can resolve this potential conflict."
The Alliance points to First Amendment freedoms and an Arizona statute that says "government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability" as legal grounds for clerks to object to issuing licenses should they so desire, and the alliance offers its contact information to any clerks seeking legal assistance.
The group says clerks have the legal option of deputizing others to perform marriage-licensing duties if they are morally opposed to same-sex marriages, and says that higher-ups must make accommodations if "sincere religious or moral beliefs prevent them from issuing certain marriage licenses."
Aaron Nash, a spokesman for the Maricopa Country Superior Court Clerk's Office, says only one employee has raised such objections so far.
That employee issued licenses to same-sex couples throughout Friday but on Monday said her religious convictions made her oppose the practice. She asked if she could take another job within the clerk's office. Nash did not know the woman's particular religious affiliation.
"We handle any request for a job transfer on a case by case basis," Nash says. In this case, there happened to be a vacancy that allowed the office to transfer the woman laterally to a position that didn't involve issuing marriage licenses.
Nash says the largest branch of the Maricopa Superior Court Clerk's Office--the Customer Service Center on West Jackson Avenue downtown--assigns clerks to handle specific sets of paperwork, like marriage licenses, criminal records, or passports. That made it possible in this case for the clerk to be transferred to a different job that would free her of her marriage license issuing duties. But in Maricopa County's small satellite offices and the clerking offices in Arizona's many rural counties, smaller staff numbers mean employees must handle multiple types of paperwork, so the option of such a transfer simply may not exist.
And even in the large downtown Customer Service Center, the woman who was given a transfer on Monday took the only such opening in her office. If someone else requests a move, Nash says, the Superior Court Clerk's Office can't offer one right now.
The Alliance Defending Freedom wrote that "a refusal by the State of Arizona and its government subdivisions to protect a clerk who cannot issue a marriage license in violation of his or her conscience suggests an unconstitutional, discriminatory intent on the part of the state or others demanding that the official violate their conscience."
Nash says his office will absolutely consider whether someone has a sincerely held religious belief when such requests are made, but notes that accommodations can only go so far. Vacancies may not be available, he says, and more importantly, clerking employees have signed a judicial code of ethics entailing the kinds of tasks they've agreed to do. "If that's their job, they have to do it," he says.
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Except for the one transfer request, Nash says this hasn't been an issue in Maricopa County so far. Long before Friday, the clerk's office asked all employees who issue marriage licenses whether any would take issue if same-sex marriage were legalized. None said they had a problem with it.
In fact, Nash says his office took pride in its ability to handle the heavy influx of licensing requests that began last week. Early planning prevented long lines, he says, and a reserve of staff cross-trained in issuing licenses didn't even have to be called in.
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