Refusing service to same-sex couples is not a right of marriage clerks.
Bart Peterson and Pete McNamara marrying in Indiana after the state’s ban on same-sex marriage was first overturned. CREDIT: AP Photo/Michael Conroy
Kim Davis of Rowan County, Kentucky became famous last year for her ultimately failed battle to avoid providing marriage licenses to same-sex couples, but she wasn’t the only clerk fighting for the right to discriminate. Now, a federal court has just ruled against her Indiana equivalent.
Linda Summers used to work as a deputy clerk for the Harrison County Clerk’s Office in Indiana, which required her to process marriage licenses. Back in 2014, well before the Supreme Court’s marriage equality decision, the U.S. Court of Appeals for the Seventh Circuit ruled that Indiana’s ban on same-sex marriage was unconstitutional and could not be enforced. Following subsequent instructions from the Indiana Attorney General, Summers’ boss, Sally Whitis, instructed all deputies that they must comply with the ruling and process same-sex couples’ marriage applications.
Summers refused. When a same-sex couple came in for a marriage license a few months after the decision, Summers told Whitis she could not perform her duty. According to the county’s personnel handbook, refusing to perform assigned work is a fireable offense, so Whitis terminated Summers. She then filed suit, claiming that she was illegally fired because of her religious beliefs.
U.S. District Judge Richard L. Young, a Clinton appointee, disagreed on Thursday. None of Summers’ tasks required her to approve or condone same-sex marriages, he explained:
To be clear, Summers did not perform marriage ceremonies or personally sign marriage licenses or certificates. She was not required to attend ceremonies, say congratulations, offer a blessing, or pray with couples. Her employer did not make her express religious approval or condone any particular marriage. Summers remained free to practice her Christian faith and attend church services. She was even free to maintain her belief that marriage is a union between one man and one woman. Thus, she was not forced to “choose between [her] religious convictions and [her] job.”
According to Young, who originally issued the ruling against Indiana’s ban on same-sex marriage that the Seventh Circuit upheld, Summers’ conflict is not with her employer, but with federal law. Title VII’s employee protections on the basis of religion do not entitle employees “to perform only those duties that meet their private approval.”
In the end, Summers should have put her personal feelings aside and heeded the command of her employer. She was certainly free to disagree with the Seventh Circuit’s decision, but that did not excuse her from complying with it. When Summers refused to process a marriage application for a same-sex couple, Defendants were within their rights to terminate her employment as a deputy clerk for insubordination.
Summers asked in her suit to be compensated for lost earnings and for the county to amend its policies so that deputies like her could refuse same-sex couples.