Here's what happens when clerks refuse

[jberryhill]

While there have been interesting visions of "lock 'em up" or "send in the troops", the actual process in these instances has a little more sting, and a lot less "martyrdom potential".

So, what do you do when a clerk refuses to issue a lawful marriage license on the basis of their religious beliefs?

Contrary to what some believe, it is not directly a "crime" to disobey a court order, and in a direct sense, this clerk has not been "ordered" by any court to issue a marriage license in the first place.

However, it is now the law of the land that persons of the same sex who are otherwise lawfully able to be married (age, consanguinity, consent, residence, whatever) what the clerk is doing is a deprivation of civil rights.

When you have been deprived of your civil rights by a government official, the relevant law is 42 USC 1983 (that's chapter 42 of the United States Code, Section 1983), typically called a "1983 action":

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable."

Okay, so that says "you can sue the clerk".

But, as they say on Survivor, "You want to know what you're playing for?"

Compensatory damages, punitive damages, and, in a rare departure to the normal rules of litigation in the US - attorney's fees - under 42 USC 1988:

"In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title... the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity such officer shall not be held liable for any costs, including attorney’s fees, unless such action was clearly in excess of such officer’s jurisdiction."

And, oh yeah, it's clearly in excess. Mind you a "reasonable attorney's fee" does not have to be the actual hours at the billable rate, but what would be "reasonable". If a top shelf NY firm would charge $10,000 to file, then that's "reasonable". The system is run by lawyers, and they can be downright unreasonable about what is a "reasonable attorney's fee".

That, incidentally, is how civil rights litigation organizations are funded, apart from donations.

So, you fill in the relevant names, dates and places in a form complaint, pay your $300 filing fee (also included in the prize package), along with the form motion for emergency injunctive relief, and serve it on the clerk.

The clerk then checks up the line and says, "Hey, is this real? Am I covered for this?" and finds out, in most instances, that the county will not pay their legal fees or cover their liability. The clerk then calls his or her friend the lawyer who says, "Issue the license or get out your checkbook."

Now, where it gets real fun is when the clerk decides he/she wants to be a hero. The clerk is going to lose on the motion for injunctive relief (ordering the clerk to issue the license) and is then going to have to decide how many days they want to spend locked up on contempt before (a) they issue the license, (b) they resign their post or (c) someone else in that county office is empowered to issue the license and they do so. Both (b) and (c) render holding the clerk on contempt to be moot, since the point of contempt is to gain compliance with the order, and not some "penalty" for non-compliance.

And this is what just played out in a county in Texas. While the Texas AG issued a much-hyped memo to clerks saying that they, personally, do not have to issue a license, the less-hyped portion of that memo says that someone ELSE in the office with the same power can issue it.

Karen Phillips, the Smith County (Texas) Clerk, just learned this the hard way:
http://www.kltv.com/story/29433340/same-sex-couple-drops-lawsuit-against-smith-co

Suit filed Friday. Clerk folded on Monday.

Man, if I didn't have my hands full this week, I'd get a van, a couple, and take a road trip into Dumbfuckistan.

[msanthrope]

1. If I drive, and we split the fees, can you go next week? nt

[jberryhill]

5. You know...

I just agreed this morning to defend a TRO in a civil case with a hearing date next Tuesday in a boring trademark case.

I had been out of the country until yesterday, and when I thought this through today I thought, "dang, there is an ATM machine out there just waiting to be tapped."

But, I'm sure that Lambda Legal and others are on this like white on rice.

[msanthrope]

10. Good luck with the TRO....And I'm not giving up hope that some jurisdiction

is going to be stupid enough to take this all the way to a payoff for someone....

[jberryhill]

13. I'm not sure...

....but I think even if the clerk folds quickly after filing, you could still keep them on the hook for the initial fees and costs.

And, of course, about that non-refundable $50,000 deposit on the reception hall I rented from my friend for that day...

[jberryhill]

12. Hmmm...

I'll have to take a quick look at the fee-splitting rules. Until recently, in my state of licensure, we couldn't pay or take referral fees except under very limited circumstances. That changed recently, and my guess is that all of the internet referral services blew that apart.

Further aside, I hate internet referral services with a white hot passion.

"On the basis of your exceptional qualifications, you've been qualified to enroll in our online directory..." Oh yeah? Then spell my name right, fuckers.

[msanthrope]

53. If I had a nickel for every Internet referral......

I ended up delisting myself from quite a few. Too many weirdos.

[Man of Distinction]

83. Hello Jon Berykil

On the basis of your unqique qualiphications, you've been qualiphied to enroll in our Who's Who of Atornies that is Great....

(intentional spelling errors left)....

Know that feeling - been fighting spam and see crap like this ALL the time in my email even though I'm not an lawyer or pretend to play one.

[For Freddie]

75. Me too...

And I will bring my guitar.

[randys1]

2. Awesome explanation, so i will stop asking to arrest them or send in the troops LOL this is much

better

[jberryhill]

7. Absent the drama of handcuffs and guns...

...the clerk reaches the realization that it's just them and their bank account that's going to be showing up for any action. It feels really lonely, really fast.

[negoldie]

67. The clerk

here in my small county in Kentucky is still pondering whether they want to pay the piper or just do what the law says.
In my experience working for an Engineering firm I had the duty to survey the Coal mine for the company, or on the other hand we surveyed a lot of abandoned mines for reclamation. Our firm (33M a year) got awards from both the CoC and EPA.
I had many moral objections to laying out a strip mine pit but I was getting paid for it and that is what mattered at the time. Now these backward county clerks are showing their full spectrum of ignorance and don't deserve another term.
After an accident (doing a side job to pay my student loans) I retired. I'm in my 60's now with a couple of good years left. I have a rare form of non hod skins lymphoma. Fingers crossed.

BTW as a life long liberal I call on everyone to give me a helping hand with my battle with cancer. Not used to begging but I am used to being poor. When those 10k bills (per month for chemo, WITH insurance) roll in I know of no one by themselves that can afford the care. My wife and I actually receive/make $32 a month too much for medicaid or food stamps. My wife volunteers at the food bank so that we are assured some food each month.
Please help this go around facebook, maybe viral if possible. I'll post updates on my condition as warranted.
Take care all!
http://www.gofundme.com/y4d8hs

[Stonepounder]

72. negoldie - check your DU mail. I sent you a note regarding your situation.

[riderinthestorm]

3. You sir, are a lawyer!

There are others who appear to play one on DU but you rock every court decision and explanation like a pro.

BIG K&R!!

[jberryhill]

6. Most lawyers are distinctly aware...

...of those few situations in US law where "reasonable attorney's fees" are on the table.

[KatyMan]

15. so is that lawyer speak for

"Let's all agree to make this go away?" 😀

(Had to edit thanks to awe toe core ect)

[Ms. Toad]

34. Lawyer speak for "let's all agree to make this go away"

after you pay my $10,000 fee. Thank you very much. (The losing party does not normally have to pay the attorney fees of the winning party - this is one of the few exceptions.)

[longship]

4. A great post, jberryhill!

Informative. Plus, just a touch of snark.

Perfect.

[dixiegrrrrl]

8. In reality, there is more than one clerk in the county offices

and most likely what will happen is there is one who is willing to provide the license.
I expect that what is happening this week is a lot of offices are weighing their options, and the consequences of their decisions. Most of the Probate Judge /courthouse workers are long term employees, and don't want
to lose their jobs unnecessarily.

[jberryhill]

14. So, you DID take the sig line

The first bunch of them that wants to play hero will be fun.

I'm thinking there HAS to be an office in some county somewhere that has a full house of them.

But you are probably right.

[dixiegrrrrl]

36. And just now, in Breaking News:

Hood County, Texas, clerk says she will not personally issue same-sex marriage licenses, but other staff in her office will -

Most court clerks are women.
Your typical Southern woman will be uncomfortable making a "scene".
They will talk among themselves and have a private in the home hissy fit, but push comes to shove, they will do their jobs.
The loudest rebellious statements have come from the Probate Judges in our 67 counties, and only a few are saying they do not want to issue licenses. A few more say they will not perform civil marriages anymore,
including our country judge.
The 4 big cities in the state are issuing licenses, it is the smaller more conservative counties and towns that are being all bothered by the change.
Any change, actually.
Hell, there are grown adults in my town who are STILL mad because this town voted to go wet in 2004.
Same year Hurricane Ivan hit a bit later.
God's will, don't ya know, for voting wet.

(yeah, could not resist the sig line idea...thanks.... )

[Doc Holliday]

66. This particular county clerk....

....oddly enough, named Katie Lang (ha-ha-ha), got her few minutes of Facebook notoriety earlier this week from a local TV station, proclaiming that she would not issue any same-sex marriage licenses because it violated her religious beliefs. She rambled on with the usual mumbo-jumbo about the Bible and "traditional" marriage , and caused quite a little tempest in a teapot. The funny (to me) part is that no same-sex couples had even applied for marriage licenses at that office yet. So this "good Christian" was essentially doing nothing more than grandstanding, taking a Principled Stand on an as-yet nonexistent issue. Some of the comments are very entertaining.

http://www.keyetv.com/news/features/top-stories/stories/hood-county-clerk-katie-lang-not-issuing-marriage-licenses-samesex-couples-due-religious-beliefs-26752.shtml?fb_comment_id=716201331839698_716673655125799&comment_id=716673655125799

[Kalidurga]

9. I'd get a van, a couple, and take a road trip into Dumbfuckistan.

Now that is a road trip I would love to go on.

[DamnYankeeInHouston]

42. When you go, make sure you have a bumper sticker that saya "Jesus Was A Liberal."

[Kalidurga]

50. On a rainbow colored background too

Or I could be persuaded to go with a black background and rainbow lettering.

[jberryhill]

52. Here ya go

[Kalidurga]

54. In certain parts of America people have started to mate with vegetables.

Uh no, they are mating with tomatoes because Reagan declared it a vegetable.

[DamnYankeeInHouston]

61. He said ketchup was a vegetable..

[Kalidurga]

79. Yikes even worse it's mostly sugar

I guess I should change it to they want to mate with sugar beets wait... those are vegetables.

[SouthernLiberal]

77. Not Reagan but....

It was 'common knowledge' when I lived in NJ that there was a state law declaring the tomato to be a vegetable. Or maybe it was the state vegetable or something like that.

But whatever you call 'em... I will eat them. Tomatoes are my favorite berries!

[Kalidurga]

78. Mine too

[Major Nikon]

11. ...

[Hassin Bin Sober]

16. Pick me a my boyfriend up in Chicago.

Our Dog-ter needs a new diamond encrusted collar.

[jberryhill]

17. What did you do with the old one?

Ah, that's it!

"I was so upset by the refusal that I let out a scream, and my dog ran off wearing its diamond encrusted collar, not to be found again!"

Pack your bags, I'm coming!

[Hassin Bin Sober]

19. Last year's model? She only wears that when she doesn't care how she looks.

[jberryhill]

27. Unless she's going for top dog:

The 2015 Ugliest Dog winner.

Adorable video here:

http://www.today.com/pets/worlds-ugliest-dog-winner-has-hunchback-bubbly-personality-t29181

[dixiegrrrrl]

73. Damn! Ed Sullivan, re-incarnated!

[jberryhill]

81. Whoa

i couldn't pin it down, but you nailed it. Yeah I thought that dog looked familiar.

[Hassin Bin Sober]

20. See? That's why I let my lawyer do the talking.

[GeorgeGist]

18. Thank you for sharing this .

[yardwork]

21. Would this work in NC?

The NC state legislature passed a law saying clerks and magistrates can refuse on religious grounds.

[jberryhill]

22. Yes it will work in NC

That NC state law is a nullity.

noun
noun: nullity; plural noun: nullities

1.
Law
an act or thing that is legally void.

[yardwork]

26. It's not legally void yet. They just passed it.

[jberryhill]

32. Lots of unconstitutional state laws remain on the books

For example, the Supreme Court decision which took out the Texas criminal statute against homosexuality (Lawrence v. Texas) technically only took out the one in Texas. However, it follows that any other state law with the same effect was rendered void.

That was in 2003. As of 2014, there were still 12 states that had it on the books. They never actually enforced them after 2003, since it would be immediate liability to do so (because of the same mechanism described in the OP).

The NC legislature could pass a statute permitting slave auctions if they wanted to.

This just in from 2013:

http://abcnews.go.com/blogs/headlines/2013/02/mississippi-officially-abolishes-slavery-ratifies-13th-amendment/

Mississippi Officially Abolishes Slavery, Ratifies 13th Amendment
February 18, 2013

[yardwork]

40. I understand, but this particular law wasn't affected by the SC decision.

We've had equal marriage here since last fall. The state legislature just passed a religious exemption law.

[FeRDNYC]

55. They passed a nothing law.

The fact that it was just passed doesn't mean that it's not affected by the SCOTUS decision, and it doesn't mean it's not a nullity.

NC can tell clerks they're allowed to refuse to issue licenses on religious-objection grounds all they want. But someone needs to issue a license to a same-sex couple that applies for one, or they're depriving that couple of their civil rights in the exact manner described in the OP.

I'm not sure why NC even needed to pass a law "allowing" religious-objections refusals. Clerks were already allowed to object to whatever they want, by virtue of... well, hell, basic free will. They're "allowing" something that couldn't really be disallowed. (Hence, nullity.) But that doesn't change the fact that the license needs to be issued, or lawsuits is a-flyin', and the clerks are still on the hook for the damages.

(Unless the NC law is supposed to somehow get them off the hook for damages? I'd love to hear jberryhill's thoughts on the chances of that holding up.)

[jberryhill]

56. Federal court is like honey badger on this NC law

Here's your "don't tread on me" flag:

[FeRDNYC]

58. Nice!

Though I guess, based on geek tragedy's KY First-Degree Official Misconduct find, that I was wrong that you can't disallow free will! (Well, you can apparently make it a Class A misdemeanor, at least.)

[MFrohike]

23. Really?

The legislature didn't set them up with some sort of indemnification scheme? Wow. The whole exercise was cynical as hell, but that makes it far, far more cynical. It's also quite hilarious.

[jberryhill]

25. I haven't thought that part entirely through

But if the county or state wants to pay for a defense, the hole only gets deeper and the payout larger.

Notice that not even the Texas AG said "We'll back you up", but suggested that some mythical roster of attorneys are standing by to take the case pro bono.

[Ms. Toad]

38. For budgetary reasons, state entities generally cannot accept unlimited liabilty.

Can't budget for a blank check.

Don't remember if I've run into that problem contracting with governmental entites in Texas, but I have in several jurisdictions.

[MFrohike]

49. That would make sense

I don't know much about the area, but I checked NC's statutes on magistrates. Magistrates are required to be bonded, but the state pays the premiums. That seems like an easy way to limit the state's liability. It also seems like an easy way to put some hurt on the state, as it's the entity actually allowing the injury to take place. After all, if the state keeps losing the money it's paying in premiums, and ending up with higher premium payments as a result, it gets easy to point to the fact that the state can choose to have it officials carry out the law, as they as required to do, and not have to keep paying out tax money so that a few bigots can play martyrs of conscience.

[Ms. Toad]

59. I would be surprised if that were an option,

Since the intent is for the state to incur significant expenses by allowing employees to do something which is unconstitutional for which lawsuits are a near certainty. No one in their right mind would charge a fixed fee to accept that kind of planned/intended liability.

Sort of like a health insurance company willingly picking up an expensively chronically ill patient - until forced, they just said, "no thanks!"

[MFrohike]

60. It may be a consequence

I don't think it was necessarily the intent of the legislature, but it may end up influencing their policy decisions. Though, the new law allows the magistrates to opt out if they write the chief judge of their district. If they do that, they don't do any marriages for six months. The chief judges then assign the duty to other magistrates or assign judges to act in that capacity for the purpose of performing marriages. Given that, I could imagine a court claiming that the state didn't actually impair the right, just set up a slight procedural hurdle.

[yardwork]

62. That's similar to the law NC just passed.

The law says that the counties have to issue marriage licenses, but only on a minimal schedule. And clerks and magistrates can decide at any moment that their religious beliefs won't allow them to issue a license or conduct a marriage. Then those personnel can't perform either action for six months for anybody. Somebody else has to step in but not necessarily on the same day.

In practice, this means that a clerk could issue licenses to a line of couples, and then close for the day if a gay couple, or inter-racial couple, or somebody wearing mixed-cloth walks to the window. This seems very discriminatory to me.

I don't think it will hold up but for now it's the law in NC.

[SCVDem]

24. If they refused on religious grounds,

I guess their faith doesn't hold up to the test.

They should be honest and admit that they are dicks!

[SunSeeker]

28. Excellent summary of 1983 claims in a nutshell.

[npk]

29. They are just daring somebody to sue them

They are just waiting till they are actually sued so they can then play the victim-hood game and claim once again that they are being persecuted against. It's a win/win for them.

[Manifestor_of_Light]

30. I had a clerk pull this crap on me in 1979 in Texas

My then-boyfriend and I went down to the Bexar County Courthouse to file a Declaration of Common-Law Marriage.

The clerk, a grumpy old man, typed up three forms and then tore them up.

He refused to register a Declaration of Common Law Marriage in Texas for us.

My crime? I, as the female, did not change my last name.

I asked him several times
"Would you please show me where it says in the Texas Family Code I have to change my name?" CRICKETS

I knew the requirements for a common law marriage because my father was a lawyer and he told me what they were. This was before I went to law school.

I went to a lawyer who told us to go to the J.P. and get married with a license and an officiant.

A clerk who does not perform the duties of his office has committed a misdemeanor, which is what I was told.

[raccoon]

65. What a sexist pig that clerk was. He should have been fired. nt

[RKP5637]

31. Thank you!!! This is very informative and extremely interesting. I had been wondering

about clerk push back and the legality of it all! And what would happen.

[geek tragedy]

33. In some places it is a criminal offense to refuse to carry

out governmental job duties.

[jberryhill]

37. Two choices on those other jurisdictions

Either they aren't going to have any refusing clerks or the state won't prosecute. I'd be interested to see a sample state statute on that one, though.

[geek tragedy]

39. Here's the KY law.

http://www.lrc.ky.gov/statutes/statute.aspx?id=19888

[jberryhill]

44. Dang

You can always tell what goes on in a state by what they make illegal.

Has the KY AG chimed in on non-issue clerks?

[jberryhill]

48. Annnnndd.... this just in

http://www.democraticunderground.com/10026927228

Two clerks in Kentucky.

Man, I KNEW I should have gotten my ass in gear this week.

[Ms. Toad]

35. Nicely done! n/t

[Proud Liberal Dem]

41. What I want to know is

Can we all refuse to do the parts of the job that we morally disapprove of/refuse to serve the people we don't like for whatever reason and still be able to keep our jobs and our paychecks? This is what drives me up the wall. These are PUBLIC SERVANTS and their job is to serve THE PUBLIC- which includes men, women, whites, blacks, straight people, gay people, etc. If you can't handle that simple fact and want to pick and choose which people you'll serve, you need to be fired or resign and find a job in another field where you can be free(r) to pick and choose the people you serve. Nobody is entitled to a job as a public servant. When I was going through my Social Work program in College, we were told about how not everybody is cut out to be a Social Worker if they can't work with all kinds of people/populations. If you want your job to be 100% consistent with your moral values and "conscience", then work for a church of your faith- where you can serve the people you want and swear the people you don't like to eternal damnation and tell them to get lost. But if you want to serve the public in some official capacity, shut up and DO YOUR JOB whether or not you like everybody you meet and/or approve of their sexual orientation!

[rdking647]

43. the hood county texas was also refusing

she just folded

[Omaha Steve]

45. K&R!

[Kablooie]

46. And to be clear a clergyman still has the right to refuse to marry a same sex couple.

If same sex marriage is not accepted within a particular religion the clergy are still allowed to decline to perform the marriage but there will be plenty of other churches that will gladly perform the marriage so no one's rights are being denied on either side.

The right wing blabber about churches being forced to offer same sex marriages is a barefaced lie.

A civil clerk is a different case, even if in their personal beliefs they do not approve.


(Now all those who were naturally born as polygamists will demand their rights too. Just wait til THEY organize! )

[jberryhill]

47. Absolutely correct

Yeah, as if straight atheists wouldn't have tried to sue a Catholic church for refusing to marry them, if such a suit were possible.

[Trekologer]

51. Let's say a couple was affected by a clerk refusing to issue a license

Could they also claim damages in such a suit for the financial impact of not being married? Such as any tax benefits, health insurance costs, etc.?

[joshcryer]

57. Nicely done.

Hope you can cash in if the opportunity arises.

[lonestarnot]

63. Score! 1983 actions, I can see a backlog in Dumbfuckistan.

Why a couple? A couple of what?

[jberryhill]

64. A couple of clients

An unfortunate reality of litigation is the inconvenience of needing litigants.

[d_legendary1]

68. Very informative OP

Thanks for the information. I'm glad some of these religious laws can be dealt with judicially.

[Flatulo]

69. As always, a great post by Mr. B.

[MineralMan]

70. Precisely. And that's how it's done.

Good post!

[Richardo]

71. This is the best post I've read in quite a while

Thanks jberryhill!

[cascadiance]

74. I guess a court clerk giving us "corporate personhood" laws gives them inflated egos?...

... like they are somehow part of the judicial process since Korporate Amerika allowed one of them to influence our stare decisis of court decisions when it suited their purposes?

http://www.hightowerlowdown.org/node/664#.VZRMXPlViHg

[LynneSin]

76. Here's what I find is ironic. That somehow marriage equality will cause Christians to be persecuted

That this new world order with gays having the right to be married will somehow punish Christians, take away their rights as a Christian and cause such great suffering. I've heard people say it's like a 'Holocaust' for Christians or that Christians will now be 'forced to sit on the back of the bus'.

But here's what I'm seeing.

The only persecution being done to these Christians, and btw it's just the fundie Christians, is by themselves. If this is their 'Holocaust' then they are asking for directions to the concentration camps. If they are using the Rose Parks on the Bus analogy, then I see them ASKING to sit at the back of the bus.

This doesn't have to be this way, these fundie Christians are the drama queens who want the attention to say 'Woe is me look how I suffer'. Issuing a piece of paper to a same-sex couple doesn't mean one endorses that marriage. They could totally disagree with it and still do their job. And God isn't going to keep them out of Heaven for something as simple as that.

I'm tired of their whining - someone needs to call these people out and point out that they are persecuting themselves.

It's like the 'War on Christmas'. It's only in the minds of the Fundie Christians is this actually an issue. The rest of us do not care if you say 'Merry Christmas' or 'Happy Holidays'

[KamaAina]

80. My firend calls her city in central Connecticut "Dumbfuckistan".

She has no idea.

[csziggy]

82. If clerks give their notice due to prejudice, are they still liable?

I'm looking at this thread: http://www.democraticunderground.com/10026935343

With this article:

Entire Tenn. County Clerk’s Office Resigns Over Same-Sex Marriage Licenses
DECATUR COUNTY, Tenn. (WKRN) – The employees of the Decatur County clerk’s office in west Tennessee have resigned from their positions.

Clerk Gwen Pope and employees Sharon Bell and Mickey Butler all said their resignations was due to the Supreme Court’s decision to allow same-sex marriages.

The decision reportedly clashes with the employees’ religious beliefs. Their last day will be July 14.

Currently, the Decatur County’s clerk office will not issue a same-sex license.

http://www.newschannel9.com/news/top-stories/stories/entire-tenn-county-clerks-office-resigns-over-samesex-marriage-licenses-18421.shtml

So for the next two weeks when that office is still refusing to issue marriage licenses to same sex couples, are the clerks liable to be sued as detailed in your OP? And since the county has accepted their resignations but has not made alternate arrangements so the office CAN perform the require duties, is the county now liable to suit?