(202) 466-3353 (fax) www.au.org. February 12, 2016. By Email & U.S. Mail ... Charleston Gazette-Mail (Feb. 10, 2016)
(202) 466-3234 (202) 466-3353 (fax) www.au.org
1901 L Street, NW Suite 400 Washington, DC 20036
February 12, 2016 By Email & U.S. Mail Brian Kennedy, Commissioner John D. Bennett, Commissioner Larry Chapman, Commissioner Gilmer County Commission 10 Howard Street Glenville, WV 26351
[email protected] Jean Butcher Gilmer County Clerk 10 Howard Street Glenville, WV 26351
[email protected] Re: Verbal Abuse of Same-Sex Couple by County Clerk’s Office Dear County Commissioners and Ms. Butcher: We understand that Deputy County Clerk Debbie Allen recently attempted to discourage a same-sex couple from applying for a marriage license by condemning the couple’s relationship while processing the application. Ms. Allen told the couple that their attempt to get married was wrong and that God would judge them. See Erin Beck, Same-Sex Couple Gets License, Condemnation in Gilmer County, Charleston Gazette-Mail (Feb. 10, 2016), http://tinyurl.com/j4mhxtq. When the mother of one of the applicants called County Clerk Jean Butcher to complain, Ms. Butcher defended the behavior of her staff and stated that she had similar religious views. Id. Not only was this conduct inhumane, but it flagrantly violated the couple’s constitutional rights. By chastising the couple and expressing religious disapproval of their relationship and attempt to marry, the County violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment as well as the Establishment Clause of the First Amendment. In order to bring the County Clerk’s office into compliance with the Constitution, the office and its staff must refrain from conveying religious or antigay messages when processing marriage-license applications or performing other official functions.
First, even if the Clerk’s office ultimately issues the marriage license, verbally disparaging a same-sex couple that applies for a license violates the Fourteenth Amendment. In Obergefell v. Hodges, 135 S. Ct. 2584 (2015), the U.S. Supreme Court held that same-sex couples have a Fourteenth Amendment right, under both the Equal Protection and Due Process Clauses, to get married “on the same terms and conditions as opposite-sex couples.” Id. at 2605 (emphasis added). Here, the County is violating this equal-treatment requirement by singling out same-sex couples for official condemnation and thus “demean[ing] the couple[s], whose moral and sexual choices the Constitution protects . . . .” United States v. Windsor, 133 S. Ct. 2675, 2694 (2013). Just as County officials could not disparage the relationships of interracial or interfaith couples while processing their applications, County officials may not demean the relationships of same-sex couples. Second, by telling applicants for a marriage license that God disapproves of their union, the County is violating the Establishment Clause. Governmental entities may not communicate an “endorsement of religion,” Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 305 (2000). When performing their jobs, then, government officials such as county clerks and their staff may not communicate religious messages to members of the public. See, e.g., Berry v. Dep’t of Soc. Servs., 447 F.3d 642, 651 (9th Cir. 2006) (discussion of religion or display of religious items by government employee likely violates the Establishment Clause, and government agency could be held liable for those violations); Knight v. Conn. Dep’t of Pub. Health, 275 F.3d 156, 166 (2d Cir. 2001) (government officials “promoted religious message while working with clients on state business, raising a legitimate Establishment Clause concern”); Roberts v. Madigan, 921 F.2d 1047, 1057 (10th Cir. 1990) (public-school teacher violated Establishment Clause by displaying religious poster and keeping Bible on his desk where it would be visible to students). The Establishment Clause violation here is especially serious because Ms. Allen proselytized to a same-sex couple visiting a government office to obtain a government license that is required for the couple to get married. Indeed, the Deputy Clerk has admitted that she sought to impose her own religious beliefs on the couple: “I just told them my opinion. I felt led to do that. I believe God was standing with me and that’s just my religious belief.” Beck, supra. County officials, moreover, have no affirmative right to treat same-sex couples this way; the County can and must require its officials to comply with the Constitution. The Supreme Court has explained that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes . . . .” Garcetti v. Ceballos, 547 U.S. 410, 421 (2006). Most recently, a federal court ruled that Rowan County Clerk Kim Davis has no First 2
Amendment right to interfere with citizens’ right to marry, despite her own religious opposition to marriage by same-sex couples; as a government official, Davis may not “openly adopt[ ] a policy that promotes her own religious convictions at the expenses of others.” See Miller v. Davis, No. 0:15-cv-00044-DLB, slip op. at 15 (E.D. Ky. Aug. 12, 2015) (order granting preliminary injunction). Decision after decision has reinforced that government officials have no constitutional right to direct unwanted religious messages at the public. See, e.g., Berry, 447 F.3d at 657 (state employee had no right to communicate religious messages to clients or to display religious items); Daniels v. City of Arlington, 246 F.3d 500, 503–04 (5th Cir. 2001) (police officer had no right to wear cross pin on uniform). Whether issuing marriage licenses or fulfilling their other responsibilities, County officials have no right “to make the promotion of religion a part of their job description.” Grossman v. S. Shore Pub. Sch. Dist., 507 F.3d 1097, 1099 (7th Cir. 2007). Please bring the County Clerk’s office into compliance with the Constitution by ensuring that County officials do not disparage same-sex couples or direct religious messages to the public. We would appreciate a response to this letter within fourteen days. If you have any questions or would like to discuss this issue further, you may contact John McGinnis at (202) 466-3234 or
[email protected]. Sincerely,
Richard B. Katskee, Legal Director Gregory M. Lipper, Senior Litigation Counsel John McGinnis, Legal Fellow
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