AG Jackley Wrong: County Employees Have No First Amendment Right to Refuse Marriage License

Dang: I should have run against Marty Jackley. South Dakota’s Attorney General apparently does not understand the Constitution, the separation of church and state, and need to do one’s job:

Attorney General Marty Jackley says if a county employee in South Dakota has religious objections to gay marriage they can have another employee issue a marriage license to a same-sex couple.

…Jackley says if another county employee was able issue a license, it would be a “commonsense solution” and wouldn’t violate the rights of the couple or the employee. He says if someone else was not available, another county or the state could issue a license [“AG: Marriage Rights Must Coexist with Religious Freedom,” AP via KELOLand.com, 2015.07.02].

No, Marty. No, no, no. A county employee cannot invoke First Amendment religious freedom to be derelict in her duty. If you take a job in a government office—county, public school, state, federal, whatever—you sign up to carry out the actions of the state. From 8 to 5, you are an agent of the State. You are the State, and when you are the State, you do not have the same First Amendment rights as when you are acting solely as a citizen. When you are the State, you take on the State’s obligation not to have a religion. The State must accord all citizens equal respect and equal rights and do its job.

The Brown County auditor cannot refuse to register a gay man to vote and force him to go register in Day or McPherson County, just because she can invoke some religious objection to his registering under the last name he takes from his gay spouse. The state Attorney General cannot refuse to receive a complaint from a woman having her period just because he’s an Old Testament fundamentalist who believes menstruating women are taboo (and he certainly can’t say to a South Dakotan, “Go to talk to the Nebraska Attorney General”). A county clerk cannot not liken a gay couple’s marriage to loving dogs and refuse to issue the marriage license that the Supreme Court says it is her job to issue.

You don’t have to approve of same-sex marriage. You don’t have to attend a same-sex marriage. You don’t have to invite your gay cousin Adam and his new hubby Steve over for the Fourth of July. But if you want to work for the secular government, you have to carry out the legal obligations of your government job, and that will include issuing any and all licenses, documents, payments, and other services authorized by your boss, the government, to all citizens, regardless of your personal political, philosophical, and religious views.

And if you can’t do that job, maybe you need to go be a church secretary, not a public employee. If Attorney General Marty Jackley can’t make that First Amendment distinction clear to his fellow public employees, maybe AG Jackley needs to seek gainful employment elsewhere as well.


121 Responses to AG Jackley Wrong: County Employees Have No First Amendment Right to Refuse Marriage License

  1. Steve Hickey

    My encouragement to people of faith and conscience during the days when the Court established law that said blacks were property would have been civil disobedience despite the consequences. We lose much when people are forced to violate their conscience. We give grace and understanding and consideration to public employees in many situations including maternity, disability, gender expression and religious holidays and practice. It’s about tolerance.

  2. Blasphemer!!! Blasphemer!!! If the Brown County Treasurer believes it violates her religious freedom to issue car license tags to an atheist, you had better own some good shoes.

  3. mike from iowa

    My conscience and deeply held religious beliefs make it impossible for me to tolerate right wing nut jobs or follow any laws they pass. Their laws do not pertain to me.

    Meanwhile,back in Texas,the hew AG is advising clerks not to follow the laws of the land while he,himself, is under indictment for securities fraud. He also stole an expensive ball point pen. He was elected with these clouds hanging over his mean,nasty right wing nut job head.

  4. Tolerance! Exactly! Religious folks are free to believe and practice as they wish. The gov’t isn’t telling them what to believe. But DO NOT force your beliefs on me or anyone else. If you think that a gay couple asking for a marriage license are acting contrary to your beliefs, fine. Just issue them a license and keep your beliefs. Evidently, their’s are different from your’s. They didn’t ask for your blessing, just a license!

  5. Marty Jackley promotes and protects lawlessness, as long as it panders to political pals. Joop Bollen walks around with millions of other people’s money in his pocket, and Jackley says that’s fine. Promoting and protecting bigots isn’t a heavy lift at all. In most other states, there would already be actions taken to have him removed from office as a crooked official.

    But how did a jaded dude like Jackley get elected president of the National Association of Attorneys General? Doesn’t anybody in that organization do any research on nominees?

  6. mike from iowa

    Tolerance by discrimination,Hickey? If yours or their’s so called religious beliefs get in the way of performing your/their duties to uphold the constitution,then maybe a change in jobs is in order.

  7. I wouldn’t want them for a church secretary, either.

    This us like the pharmacist thing and Plan B. Ridiculous.

  8. This is the price Jackley and Taliban Wing of the SDGOP pay when they promote lawlessness and get behind unconstitutional assaults on our nation. Unfit for office. Fast and loose with other people’s money.

    http://rapidcityjournal.com/news/state-and-regional/article_9813fd03-ef76-59f2-b9e3-c1679de93e45.html

  9. Barry Smith

    All just political bluster as the religious conservatives will continue to try to form redoughts in a war that they have already lost.

  10. Well said Correiy. If you have religious objections to issuing a marriage license, quit your taxpayer funded job. That is all that Jackboots should be suggesting.

  11. Tried to refrain from posting here due to some self-congratulatory circle jerking that I see happen that is too similar to dakotawarcollege, but I couldn’t let Steve Hickey get away with that post. Steve: you are conflating private action, i.e. the beliefs of a person and how they act on those beliefs in their free time, and their actions at work. Respondeat superior has existed for a long damn time. When a person acts as an employee of the state, they essentially act AS the state. You don’t just get to trot out “hurr durr first amendment” for a person refusing to obey the law in the context of their job as a state employee.

    It absolutely boggles my mind that someone with such a s—ty grasp of basic legal concepts has managed to remain in elected office as long as you. More people should be tired of your populist bulls—.

  12. Correcto mundo South Dacola, if ya don’t want to perform your duties, don’t let the door hit your sorry behind on the way out. Just leave. As far as Marty Jackley goes, regarding his being the supreme leader of the Attorneys General Ass., this is about as prestigious as being the president of the turd polishers association. Look at who he is the leader of, the bone head from Texas? How about the rest of the 36 states that deny Medicaid Expansion? When you are the leader of a bunch of crooks and liars, it only shows that you are indeed a crook and liar on a scale that they all admire. Joop Bollen is his centerpiece on allowing corruption.

  13. Nick Nemec

    If a governmental employee refuses to preform some portion of their duties they should be fired. There are plenty of other people who would love to have a government job and would preform all the duties of their office without complaint.

  14. Nick Nemec

    I hope the plaintiffs attorneys are successful in their quest for lawyers fees. They deserve them and there needs to be a penalty paid by jurisdictions that enact stupid laws that are eventually overturned.

  15. I cannot believe I just read a comment opining that abolitionists working to free enslaved human beings is just like a person’s “right” to be derelict in their duty and to deny other citizens their equal rights.

    Wow. Talk about turning logic on its head. At this rate, soon, being required to do the job one was hired to do will be just like being martyred.

  16. Deb Geelsdottir

    Hickey, as a private citizen, you are free to engage in any level of civil disobedience you choose. Are you really drawing an equivalency between slavery and marriage equality?

  17. larry kurtz

    Marty is a rank partisan with one hand on his catechism and standing on the necks of people who love each other.

  18. Barry G. Wick

    Since I now live in Iowa, you can spend your money getting married in Iowa and go back to South Dakota….where South Dakota will have to accept your marriage now. If South Dakotans don’t want your gay dollars, come on over to Iowa where there are no problems getting married or enjoying a nice wedding night surrounded by the noisiest corn fields in the world. Let the idiots in South Dakota be idiots like they’ve always been…backwards, poorly educated because the state puts so little into public education, no health care…come to Iowa where there’s actually an economy and lots of people spending money on everything…healthcare…gee, it’s wonderful over here. Government employees in Iowa just do their jobs without hassle. Let South Dakota cave in on itself. Come on over to Iowa. Jobs, healthcare, marriage for everybody. And an economy that’s exploding. Minnesota, too. It’s just a short drive to happiness.

  19. larry kurtz

    From the Treaty of Tripoli:

    As the government of the United States of America is not in any sense founded on the Christian Religion,-as it has in itself no character of enmity against the laws, religion or tranquility of Musselmen,-and as the said States never have entered into any war or act of hostility against any Mehomitan nation, it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries.

    http://avalon.law.yale.edu/18th_century/bar1796t.asp

  20. Eve Fisher

    I’ve noticed that Mr. Hickey and his ilk are all about “religious liberty” and “freedom of conscience” when it comes to highly specific matters of sex: gay marriage and birth control for women. That’s about it. Anything else mentioned in the Bible – not so much.

    For example, can/should a state employee refuse to issue a marriage license to someone who’s marrying for money? After all, “greed, which is idolatry”, is arguably a far worse sin, even in the Ten Commandments.
    How about if it’s their second, third, or fourth marriage? (Jesus said that’s adultery in Matthew 5:32).

    Do your job, state employees, according to state and federal law, not according to your own personal religion.

  21. Bill Goehring

    “Correiy”: Mr. Dacola delivers the coup de grace of Cory misspellings. Well played, sir!

  22. bearcreekbat

    Great points Eve. How about refusing to perform any wedding in which the participants wear mixed fabric clothing contrary to the command in Leviticus 19:19?

  23. Roger Cornelius

    This topic has really blown up today on national news coverage, they have been reporting all the Jackley type absurdities from around the country.

    Last night on Steve Hildebrand’s Facebook page he started posting some of the more stupid ones, I don’t think there is enough room on his page to post all of them.

    Politicians take an oath uphold both the state constitution and the U.S. Constitution and are rarely held to account for it when they violate that oath to serve ALL people. Do state employees take a similar oath or pledge when they are hired to serve All people?
    This is not an issue of religious tolerance as Hickey suggests, this is prejudice being applied in a public and government office. This is not Jackley’s common sense being applied, it is he that is tolerating prejudice.
    We can look forward to many legal challenges for these oath violators over the next few weeks, I can hardly wait for them to get to federal court where they will be smacked for what they are.

  24. bearcreekbat

    Barry, I will point out that young people in South Dakota generally support same sex marriages and oppose discrimination against LGBT folks, so the blame for SD’s archaic attitudes cannot really be attributed to our refusal to adequately fund education. As best I can tell, most of our Millennials, Generation Xers, and a goodly number of Baby Boomers support marriage equality.

    It seems to be the white faction of the so-called Greatest Generation that has the most angst about this type of progress, along with many white male Boomers. As these folks continue to die off South Dakota will slowly accept these cultural changes.

    Meanwhile, it is the oldsters who have access to money so political folks like our AG will continue to pander to their fears since that is where the current monetary payoff is most promising.

  25. Jackley has never been right on anything that matters to all, but always rightwing in his thinking process. If you ever are wondering if you should or should not do something, ask the burr head, for his opinion, then do the opposite for success.

  26. Steve Hickey

    Yes I did equate the two as both are bad rulings. The Court has reversed itself 230 times in its history. People of faith, in America, have freedom of conscience regardless of what the Court says is law today. Roe v Wade will be their next big reversal. Until then Americans can’t be forced to violate their conscience.

  27. Barry G. Wick Congratulations on your move!

  28. Eve Fisher

    If “people of faith in America have freedom of conscience regardless of what the Court says is law today,” does this include people of Muslim faith? Do they get to require women to wear, say, hijab in public? Or to refuse to serve a woman whose head is uncovered?

    You see, I oppose anyone in authority requiring that THEIR religion be imposed on everyone else, in spite of the law of the land.

    Mr. Hickey, simply living in a secular society does not violate anyone’s conscience. If it did, St. Paul would have been in constant violation of his conscience, living as he did in the greatest pagan society of all time, Rome, in which even soldiers and civil servants had to burn incense in literal emperor worship. What was St. Paul’s advice to the Christians of his day? Romans 13:1-7, and let me especially note that he says in verse 6 that your obedience – “being subject” to the law [in his time, of Rome] is required “because of conscience.”

    It’s quite simple: if something violates your conscience, don’t do it. If necessary, take the consequences for it. Yes, you might get laughed at. Yes, if you refuse to perform the duties of your office, which you swore to uphold, you might get fired. Tough. That’s the way it works. But your conscience is not and should not be my law, and my conscience is not and should not be your law.

  29. mike from iowa

    It violates my conscience every time I see an ammosexual strutting around armed to the teeth in public and confronting duly hired law enforcement officials telling them they can’t do anything about it. It violates my conscience just knowing wingnuts are some of the most dangerous,dumbest SOB politicians the world has ever known and that there are enough ignorant people out there to keep electing them.

  30. Steve, on civil disobedience, see the oath that Roger cites. Keep your civil disobedience out of the courthouse. Public employees have a job to do. They cannot co-opt the authority they get from the State to undermine the State. They will have to wage that fight from the streets and the churches, not from the courthouse.

    And South Dacola, per Bill G’s observation, all these extra letters in my name really need to stop. :-D

  31. Dicta, I take offense at the characterization of the conversation here as circle-jerking. When we win a few cases, are we not allowed to feel good about that and say so?

    But let’s not let the gratuitous personal attacks detract from the main point: public employees have no right not to do their job. Heck, the law forbids public employees from striking (see SDCL 3-18-10); isn’t refusing to perform one’s duty a strike?

    Ah, but to be called a strike, the religious objector would have to be “concerting action with others… for the purpose of coercing a change in the conditions or compensation or the rights, privileges, or obligations of employment” (see SDCL 3-18-9). Hmm… so if religious public workers collaborate in staging any sort of mass disobedience in refusing to issue marriage licenses in order to press the argument that their work should not oblige them to fill out those licenses, they could be busted under our anti-strike law.

    Hmm… our “right to work” laws may but up against the theocrats’ aspirations to dissolve the separation of church and state. Which value will Jackley put first?

  32. larry kurtz

    yer a god, cah.

  33. happy camper

    Oh Coreee count the ways. I think they’re doing it on purpose. His name is CORY. CORY. CORY. Send em to the chalkboard.

  34. I can see both sides of this debate. I would gladly grab the marriage papers from an anti-gay govt employee (faster than they could open their mouth for a hate-filled anti-gay comment) and be honored to serve a gay couple wanting to celebrate their love and get married. Remember, no matter how ignorant, it is that anti-gay person’s right to be anti-gay.
    On the other hand there are probably hundreds of minimum wage South Dakotans that would gladly take that anti-gay’s government job and happily work it and have no problem with gay couples coming in to file their marriage papers. Even for 10 buck/hr (which is probably the going rate for a SD govt office employee) there would be many vying for that job on account of many perks such as decent health insurance, nice weekday hours, weekends off and paid vacation time.

  35. rollin potter

    You bet hickey,remember the words in the first paragraph that Cory wrote above!!! separation of CHURCH and STATE when you get to Pierre next January!!!!!!!

  36. happy camper

    When you’re working for the government, you obey government laws while on duty: period. Or we would have anarchy. 1. a state of disorder due to absence or nonrecognition of authority

  37. It’s past the time for the state to rush back to the future – and get out of the business of sanctifying/licensing marriages. The state came about this role recently in human history (see links) and it’s time to leave it. The state once thought it’s interest was, in part, to prevent wayward kid-lovers from screwing up “arranged marriages” imposed by parents (thanks Catholics), then for racial or genetic purity (thanks rednecks), then to minimize STDs (nice try doctors), etc. The states’ only true role in marriages is stewardship of looking out for the interests of the state and the weakest when marriages fall apart so the spurned, neglected, and abused are not cast to the states’ welfare roll’ when a former spouse can provide. The states’ roll is that of equity – when those formerly wed failed to contractualize all the variations of “what if” in an extensive pre-nup.

    http://www.argusleader.com/story/jonathanellis/2015/07/02/lawmaker-end-state-marriage-licensing/29588733/

    http://www.nytimes.com/2007/11/26/opinion/26coontz.html?_r=1&

  38. Roger Elgersma

    People absolutely have to follow their conscience. Otherwise they would have to sell their own soul. This destroys character. Will some lose their jobs, yes. Some will be tolerated. Some will tolerate something they think is bad and decide it is someone elses fight.
    The Medes and the Persians had a rule and cultural attitude that everyone including the king would follow the law no matter what. So when the King was number one and Daniel was number three in the kingdom someone conned the king into passing a law that would put Daniel in the lions den if he followed his conscience. So Daniel spent a night chatting with the lions and a pagan king realized there was a real God when Daniel was still alive in the morning. Does this happen very often, well no. Usually when we do not follow the law, we suffer. That is because our religion can not tell our government what to do or what is right.

  39. Roger Elgersma

    If there was no supreme being that set right and wrong and laws of nature, would there be any right or wrong? Would there actually be such a thing as conscience or passion for doing right if there was no right or wrong? Is our opinions of right and wrong just a figment of our imagination?

  40. Douglas Wiken

    May or may not apply: “Render unto Caesar that which is Caesar’s and unto God that which is God’s.”

    And then there is ” If you can’t stand the heat in the kitchen, get out of the kitchen.” A few wingnuts fewer in SD Courthouses would not be a great loss to the state.

  41. Barry, while you were bragging about how good it is living in Iowa you forgot to mention the stench of livestock waste from one end of the state to the other.

  42. The words below are from bestselling Christian fiction writer Frank Peretti:

    “The United States of America is a compendium of different religious beliefs, but what holds us together as a nation is the core belief that we are one people and that somehow we can find ways to get along and accommodate our differences. …

    “Gay or Christian, we are all Americans, and the question before us is, Are we going to keep defying and destroying each other or are we going to find a way to love our neighbor, love our country, and do what we must to hold this country together? …

    “Accommodation is the key word here. Compromise. Meeting in the middle. …

    “Both the Christian and the gay will have to live with the fact that they are not going to change each other by the Christian denying and the gay demanding the service. Only strife and destruction, not peace, will follow. They must ask themselves not what is gay or what is Christian, but what is American. What does it take to love, and not destroy, one’s neighbor?

    “There are those on both sides who will roll their eyes at this, grab their swords, and go back to war, but I believe most of us want to be a community, a unified nation. We must put our swords away, make allowances, and seek peace with our neighbors.”

    https://www.facebook.com/officialfrankperetti/posts/1054887094538625

  43. Deb Geelsdottir

    Kurt, that’s a perfect quote for this circumstance.

    While I completely support equal rights for all Americans, I wish LBTG folks would leave the homophobic bakers, churches, florists, wedding planners, etc., alone. Give them time to adjust and see that their fears are baseless.

    My dearest friend has struggled with this, but over the years she has finally come to the place where she is okay with it, particularly between women. I’ve heard from others that lesbian marriage is more acceptable to them than two men. I don’t know why that is, though my guess includes a connection to male dominance.

    On this particular topic, government employees don’t have an option. As others have said, if they choose civil disobedience, they should be fired.

  44. mike from iowa

    Imagine a Klansman/Secret Service agent allowing white supremacists to attack Obama because of his “deeply held beliefs” that Blacks are inferior.

    http://juanitajean.com/wp-content/uploads/2015/06/cwjmo150623.gif

  45. mike from iowa

    South Dakota will soon be enjoying all the benefits of having large cafos everywhere. Then,just remind yourself that hideous odor that is so pervasive is the smell of money. You won’t notice it at all after that. Depending on wind direction and velocity and whether the stuff is being applied nearby or being hauled by your residence or the mud gets drug onto the rutted up roads or a zillion other little reminders. No worries,Greg.

  46. Kurt’s quote isn’t quite perfect: Peretti’s line about how “they are not going to change each other by the Christian denying and the gay demanding the service” draws a false scenario. I’m not trying to change anyone when I go to the courthouse to get a license or a building permit or what have you. I’m expecting my government to perform its duties. I have a right to demand service; the government does not have a right to refuse me on any grounds other than the fact that I am not complying with the law.

    And as Obergefell v. Hodges establishes, marriage equality is the law of the land.

    Other than that, Peretti makes a good point for the Fourth of July. We must function as one country. In this case, the compromise necessary to function as one country lies entirely with the public official who must set aside her personal beliefs and perform her public function.

  47. Meade County Commissioner Alan Aker posts on Facebook, “After weed season, the Meade weed and pest department offers prairie dog poisoning at a low cost to landowners. Call the weed and pest office in the cold half of the year to sign up.”

    If any Meade County employee voices religious objections to killing prairie dogs, I assume Commissioner Aker and AG Jackley will allow that employee to hang up on those murderous, sinful callers.

  48. Unable to square your religious beliefs with your job? The obvious solution is to resign, like these three employees of the Decatur County clerk’s office in Tennessee.

  49. larry kurtz

    Why is Marty able to just make stuff up?

  50. happy camper

    According to Roger then, if an employee believed in gay marriage they should have gone ahead and issued a marriage license. To suit their conscience.

    Jackley is setting up the state of SD to get sued. Stupidity continues.

  51. mike from iowa

    Maybe by poisoning prairie dogs,death penalty advocates will get a handle on their next drug cocktail for offing humans in prison. They have already violated federal laws by importing illegally drugs to be used on human guinea pigs on death row.

  52. Thanks for posting Owen. Jackley’s an ego-bloated panderer to the extreme right who thinks he’s ready for a national audience. But as long as he’s willing to push ideas out there, will a news reporter ask him if he would also eagerly support the tax exempt status for alleged religious groups who openly oppose marriage between races?

    A lot of people are going to see this story and think this is about protecting churches. It’s not. It’s about misusing his office in South Dakota to protect the hate monger think tanks in D.C. that have been the cornerstone for organizing the uber-right wing in our nation.

    But really. Does the Supreme Court ruling find these haters with less legal cover than they had a week ago? I doubt this changes their status. Jackley’s just grabbing headlines and dumb reporters are too willing to give him a stage and not ask professional questions.

  53. Nailed it 96 tears

  54. Corporate media is always in on the fix now, they are not our solution to finding information, they are the source of paid propaganda as they have sold their souls to money.

  55. bearcreekbat

    The reference to Daniel and the Lion’s Den by Roger Elgersma becomes even more relevant when you read “the rest of the story.”

    After the King passed the law that prohibited prayers to anyone but the King, some men observed Daniel praying to Yahweh and reported this transgression to the King, just as the law required. Daniel was then arrested and placed in the Lions’ Den. After the King learned that Daniel had survived the Lions’ Den the King had the men who reported Daniel’s illegal activities, their wives and children all arrested in put into the Lions’ Den. The Lions ripped each entire family to shreds.

    Here what the King James Version reports:

    “And the king commanded, and they brought those men which had accused Daniel, and they cast them into the den of lions, them, their children, and their wives; and the lions had the mastery of them, and brake all their bones in pieces or ever they came at the bottom of the den.”

    Daniel 6:24.

    So the Bible warns us that if we obey the law we take the chance that our entire family could be slaughtered. No wonder the anti-gay clerks are spooked. Apparently we should all be afraid, very afraid, when it comes to obeying our laws. Indeed our spouses and children could end paying the ultimate price and cannot hope for help from Yahweh according to the story of Daniel and the Lions’ Den.

  56. Eve Fisher

    What drives me nuts about “religious liberty” is that the people who use it mean “Christian liberty”, and they mean “I want to enforce MY idea of what is right and wrong on everyone else”. At the same time, they would have fits if, say, the only butcher in town turned kosher and decided none of us should eat pork anymore. And let’s not forget Allen West’s rant against a Walmart worker whose name was “Not ‘Steve” (West’s supposedly cute indication that the worker was foreign, hint, hint) and had a sign that he couldn’t sell alcohol products – obviously the worker was imposing Sharia Law! (Turns out the kid was underage – guess what – People under 21 aren’t allowed “to just scan a bottle or container of an alcoholic beverage” for ANYONE – it’s against the law. Period. But so far West hasn’t apologized to anyone. Much better to talk about how persecuted America is getting. http://mediamatters.org/blog/2015/05/11/allen-west-thought-he-was-the-victim-of-sharia/203610)

    Anyway, there is a place for true religious liberty: we have the right to practice any religion, belong to any faith that we choose. However, these days, apparently all “religious liberty” means is an opportunity for conservative “Christians” to seek special privileges for themselves over others, while crying persecution by a government that provides them more protection than any other country would allow. Oh, and yes, Mr. Jackley, crying the “religious liberty” wolf is a darned good way to launch a political campaign.

  57. happy camper

    From the link: On Thursday, Jackley said public workers with religious objections to same-sex marriages could ask someone else to issue marriage licenses to a gay couple. He said a “commonsense solution” like that will ensure no one’s rights are violated.

    Humiliate people coming to get a license, send em to another county or force the state to do it. Obvious discrimination. Occasionally Larry is right. Why do people live in this state?

  58. I agree with Jerry. You nailed it 96 tears. well said

  59. Deb Geelsdottir

    A Wapo article well illustrates the points made here. Legal precedence for all these religious exemptions does not exist. In fact, the opposite is true.

    http://www.washingtonpost.com/opinions/the-limits-of-exemptions-from-a-higher-power/2015/07/02/3a2485b0-20f5-11e5-84d5-eb37ee8eaa61_story.html?wpisrc=nl_p1most&wpmm=1

  60. As long as they say God commands their activities, they are absolved of their tax burden. Thanks, Deb, for posting the Washington Post article.

    There’s new hope for the Ku Klux Klan, American Nazi Party, the National Rifle Association and any other extreme right fear and hate mongering organization as long as they say they’re spewing their hate and fear in the name of the Lord.

    That’s what the Attorney General from South Dakota’s fighting for. Freedom!!! USA! USA! USA!

  61. This is a lawsuit waiting to happen. That statement will blow up in Jackley’s face, its not a matter of if, but when. Then, the state will get to waste more resources to get spanked again in court.

  62. Cory wrote:
    >“Peretti’s line about how ‘they are not going to change each other by the Christian denying and the gay demanding the service’ draws a false scenario. I’m not trying to change anyone when I go to the courthouse to get a license or a building permit or what have you.”

    Frank was actually writing (on May 5) about privately owned businesses:
    https://www.facebook.com/officialfrankperetti/posts/1054887094538625

    But if you’re not trying to change anyone, why do you demand that the service be performed by the specific government official whose conscience is violated?

    “Bearcreekbat” wrote:
    >“The reference to Daniel and the Lion’s Den by Roger Elgersma becomes even more relevant when you read ‘the rest of the story.’”

    Find that here:
    https://www.biblegateway.com/passage/?search=Daniel+6&version=NASB

    Eve Fisher wrote:
    >“What drives me nuts about ‘religious liberty’ is that the people who use it mean ‘Christian liberty’, and they mean ‘I want to enforce MY idea of what is right and wrong on everyone else’. At the same time, they would have fits if, say, the only butcher in town turned kosher and decided none of us should eat pork anymore.”

    I’m an advocate for religious liberty, and I’m pretty sure I wouldn’t have a fit if the only butcher in town turned kosher.

  63. Kurt, I’m not demanding the service from an individual. I am demanding the service from the state. The individual who performs that service is at that moment the state and has no legal grounds on which to refuse service.

    I’m not demanding that the individual change. I’m demanding that the state do what it is legally bound to do. Kurt, you and Marty are prescribing that an individual be able to change the law and the Constitution by personal whim.

    Your local butcher is not the state.

    Happy, AG Jackley’s use of the phrase “commonsense solution” is important. He wants us to use “common sense” when he knows he can no longer win a case in court, but he’s been more than happy to skip “common sense” and sue to stop gay marriage and the ACA. “Common sense” would dictate that the state stop fighting the ACA and accept the Medicaid expansion. “Common sense” would dictate that the state accept responsibility for persecuting the Robrahns and other gay couples, accept the adverse ruling from Judge Schreier last January, and pay the victorious plaintiffs’ legal fees.

  64. Bill Dithmero

    “Jackley said public workers with religious objections to same-sex marriages could ask someone else to issue marriage licenses to a gay couple. ”

    That is kind of like saying, I know the toilet has to be scrubbed, I know I can get someone else to scub the toilet, and this way I can truthfully say I never scrubbed the toilet.

    Its kinda like subcontracting your bigotry.

    The Blindman

  65. Deb Geelsdottir

    “Its kinda like subcontracting your bigotry.”

    That’s so well put Blindman. So well put.

  66. Eve Fisher

    “But if you’re not trying to change anyone, why do you demand that the service be performed by the specific government official whose conscience is violated?”

    Because if you are not willing to uphold/fulfill the laws of the land, then you shouldn’t be a government official whose job is to uphold/fulfill the laws of the land. What’s so hard about that? It used to be, if you took a job without intending to fulfill all the requirements of it, it was reason to fire you, irrespective of religious objections.

    And with, “let another employee do it who doesn’t mind”: in case you haven’t noticed, in SD, in most counties, there’s only one county clerk per county – and it’s a long drive from one county to another. And Blindman’s right, that’s just subcontracting bigotry. (Well put, Blindman).

  67. Ray Tysdal

    “Mark my word, if and when these preachers get control of the [Republican] party, and they’re sure trying to do so, it’s going to be a terrible damn problem. Frankly, these people frighten me. Politics and governing demand compromise. But these Christians believe they are acting in the name of God, so they can’t and won’t compromise. I know, I’ve tried to deal with them.” That from one of the fathers of the modern conservative movement, Barry Goldwater, in the 1960s. Ronnie Reagan allowed those right-wing religionists in and, now, every time they try to legislate their own version of morality and get slammed they cry “foul…you are trying to take away our religious freedom!” Someone should have told them when they entered politics that they better grow thicker skins…it is not their faith that we want to go away…its just their attempts to legislate it down our throats.

  68. Barry Smith

    Exactly Bill. What kind of principal is one standing on when their inner dialogue goes something like this? ” I can’t commit this sin that my job requires because of my conscience but I can get someone else to commit this sin in my place”.

  69. mike from iowa

    Send wingnuts back to pre-school and introduce them to common sense. They can also learn to play well with others,too.

  70. I’d asked Cory:
    >>“But if you’re not trying to change anyone, why do you demand that the service be performed by the specific government official whose conscience is violated?”

    Cory answered:
    >“Kurt, I’m not demanding the service from an individual. I am demanding the service from the state. The individual who performs that service is at that moment the state and has no legal grounds on which to refuse service.”

    The individual who performs the service is an agent of the state, but why do you demand that the service be performed by the specific government official whose conscience is violated rather than by someone else?

    >“I’m not demanding that the individual change. I’m demanding that the state do what it is legally bound to do.”

    You seem to be demanding both. Even if the state can do what it’s legally bound to do without violating an official’s conscience, you insist that “the compromise necessary to function as one country lies entirely with the public official who must set aside her personal beliefs and perform her public function.”

    >“Kurt, you and Marty are prescribing that an individual be able to change the law and the Constitution by personal whim.”

    I’ve posted a thought-provoking quotation and asked a question. So far I’m not prescribing anything.

  71. Kurt, why should any public employee who is being paid to do the work of the state be able to choose not to do the work of the state and leave me hanging while I wait for either someone else to come do the job I expect to be done or for someone to really invoke the Jackley directive and tell me I have to go to another office (another county?) to see the state carry out its duty?

    I guess the change I’m asking for is this: if you can’t do the job you are sworn to do for the public, then you need to change your job. Public employment is no place for people who put themselves first.

    Kurt, your questions to me suggest that you would prefer that an individual be able to change the application of the law and the Constitution by personal whim.

  72. Cory asks:
    >“Kurt, why should any public employee who is being paid to do the work of the state be able to choose not to do the work of the state and leave me hanging while I wait for either someone else to come do the job I expect to be done or for someone to really invoke the Jackley directive and tell me I have to go to another office (another county?) to see the state carry out its duty?”

    I’m not sure whether the Jackley directive would either leave you hanging or require you to go to another office, but I can think of many possible justifications for the scenario you describe. One example might be that the employee’s child is experiencing a life-threatening medical emergency.

    Why do you demand that the service be performed by a specific government official whose conscience is violated rather than by someone else?

  73. I’m demanding my government hire individuals who can provide the service expected of that job so that I don’t have to go looking for specific people with an office depending on their personal beliefs.

    There is no life-threatening situation involving immediate kin here. Public officials are being asked to place information and perhaps an official stamp on a piece of paper and/or enter data in a computer.

    Shall I go to work for the county and refuse to issue concealed weapons permits because I think guns are immoral?

  74. Eve Fisher

    “Shall I go to work for the county and refuse to issue concealed weapons permits because I think guns are immoral?”
    Cory, best analogy yet.

  75. Cory asks:
    >“Shall I go to work for the county and refuse to issue concealed weapons permits because I think guns are immoral?”

    If issuing concealed weapons permits violates your conscience, then yes, you should refuse to issue them. Why do you demand that a service be performed by the specific government official whose conscience is violated rather than by someone else?

  76. Eve Fisher

    Because, Kurt, as we’ve been trying to tell you over and over again,
    (1) if you take an oath, or sign a contract (like that of employment) you should fulfill that oath/contract AS A MATTER OF CONSCIENCE. If you can’t, don’t take the job.
    (2) In South Dakota, in most courthouses outside of Rapid City and Sioux Falls, there is only one clerk. If that clerk decides they don’t want to, you have to travel a long, long, long way to find another. (I know – I used to be a circuit administrator, and I know exactly how many employees there are.) If that clerk decides they have the right to pick and choose which laws to fulfill, then that citizen is SOL. (Actually, the same applies to pharmacists as well, but we won’t go into that…)
    (3) Therefore, we obviously need a job requirement that everyone who takes a job working for county/state/feds (at least in South Dakota) swears to uphold the laws of the land, irrespective of private beliefs/opinion. Otherwise, that person is holding all the citizens of his/her county hostage to their own private beliefs, which is NOT what religious liberty is about.

  77. false equivalency: dreamy gay couple or angry gun toting permit seeker. yikes.

  78. Bill Dithmer

    Because the state of SD isnt a nonprofit organization, and those people that work in those offices arent volunteers. They are being paid to do certain things that can only be done in that office. That is what a civil servant does.

    If he refuses, then he is only doing part of his job leaving the thing he didnt want to do for someone else. That would be an uncivil servant, working part time for the government, part time for himself, and fulltime for his faith, all at the same time in the same office at a cost to the people that he only seems to represent when his concience will let him.

    Now, if these employees are willing to act that way in public, while not doing their jobs, what are they doing in the office that would justify being paid?

    The Blindman

  79. I’d asked Cory:
    >>>“Why do you demand that a service be performed by the specific government official whose conscience is violated rather than by someone else?”

    Eve Fisher responded:
    >>“Because, Kurt, as we’ve been trying to tell you over and over again … [three reasons].”

    Assume all three of your conditions are met:
    (1) The official fulfills her contract.
    (2) No one has to travel to another clerk.
    (3) The official upholds the laws of the land.

    Are you saying you and Cory will allow someone else to perform the service under those conditions?

    Bill Dithmer asks:
    >“Now, if these employees are willing to act that way in public, while not doing their jobs, what are they doing in the office that would justify being paid?”

    I guess I’m not convinced that every employee who doesn’t personally perform some specific service isn’t doing his or her job.

  80. Dithmer: “uncivil servants” belongs in the title of my next article on this topic. Let’s hope South Dakota’s public officials all deny me that pleasure and carry out their civil functions unflaggingly.

    Kurt, I don’t care who does the job when I go to the courthouse. And I don’t expect the sheriff or the veterans’ affairs officer to step away from their official duties to do things not in their job description. But I expect everyone with the official capacity to do the job to do the job, with no runaround or imposition of personal beliefs. A county clerk must issue a marriage license when a couple who can legally marry present themselves at the courthouse, regardless of that civil servant’s personal opinion of that couple’s sex, race, ethnicity, temperament, age, or any other condition not addressed in statute.

    The county employee in Brookings who handed my wife and me our license could not have said, “I believe it’s wrong for a Lutheran and an atheist to get married. I thus will not issue your license.” If I worked for the county, I couldn’t refuse to process a license for a Mormon or Jehovite couple who plan to observe strict male headship. A Larry Kurtz employed by the county couldn’t refuse to issue a license to a couple converting to Catholicism.

    The state and the county can create no extra barrier to carrying out the law of the land. If the county wants to hire one person to handle all marriage licenses, and if the county wants to query all of its staff, “Do you have any objection to issuing marriage licenses to every legally qualified couple that applies?” and pick a person who has no such objection, that’s fine. (Note that the county in its hiring process must ask that question carefully, because employers can’t ask job applicants about religion.) But the formula holds: to have this job, you must set aside any religious objection that would result in your providing service to fellow God-fearing heterosexual Christians but not to gays, Muslims, atheists, or any other legally marriageable citizens.

    Let me check that, Kurt: Are you saying that a county clerk may issue a marriage license to John and Mary, then refuse to issue a license to Adam and Steve?

  81. mike from iowa

    An off-shoot of Jerry Fatwell’s Liberty University is looking for county clerks to get sued for refusing to their jobs so they can defend them in court. They finally have their man/woman in Texas-maybe.

    http://www.dailykos.com/story/2015/07/07/1400096/-Texas-County-Clerk-Pledges-To-Defy-SCOTUS-Marriage-Ruling-And-Issues-Anti-Gay-Manifesto?detail=facebook#

  82. mike from iowa

    -remember wingnut whining about Obama being a Muslim and demanding he check his religion before setting foot in the White House?

  83. Well, Mike provides us with our uncivil servant of the day. Thanks!

    Good comparison to faux concerns about our President’s religion. Eve mentioned Allen West’s false Sharia fear above. I certainly don’t want Muslims in public positions to impose sharia on me; can we say that AG Jackley is leaving the door open for South Dakota’s civil servants to turn uncivil like the Texas woman Mike cites and extralegally impose their own Christian Sharia?

  84. mike from iowa

    Glen Maxey,an openly Gay Democrat congressman from Texas has organized lawyers to sue every county clerk in Texas who refuses to issue marriage licenses to Gays. So far,everyone threatened with a lawsuit has decided federal law trumps religious beliefs except for the lady? in question above.

  85. Eve Fisher

    What part of, “if you don’t do your job – ALL of it – you don’t fulfill your contract” do you not understand, Kurt? There’s no way you can fulfill #1 in my list of three without doing all your job, so the rest of your post is irrelevant.

    Frankly, I am leery and weary of all so-called religious objections these days, because they all boil down to, “MY religious objection trumps YOUR right to YOUR access to legal services, health care, and/or YOUR religious objection to MY decision.” ME first, without consequences for ME (God forbid I should lose my job/be laughed at/be ignored), only consequences for YOU, and you don’t count.

    From and for all the yous out there, that’s no way to run a country. Or a government. Or a democracy. Or is that the idea?

  86. Cory has written:
    >“In this case, the compromise necessary to function as one country lies entirely with the public official who must set aside her personal beliefs and perform her public function… A county clerk must issue a marriage license when a couple who can legally marry present themselves at the courthouse … If the county wants to hire one person to handle all marriage licenses, and if the county wants to query all of its staff, ‘Do you have any objection to issuing marriage licenses to every legally qualified couple that applies?’ and pick a person who has no such objection, that’s fine.”

    So you demand that the license be issued by the clerk whose conscience is violated, but it’s fine with you if the license is issued by someone else whose conscience isn’t violated? Wouldn’t you say those statements contradict each other? Rather than requiring a new hire, would you allow the county to designate a current employee to handle marriage licenses?

    Cory asks:
    >“Are you saying that a county clerk may issue a marriage license to John and Mary, then refuse to issue a license to Adam and Steve?”

    No, right now I’m mainly just trying to figure out what you’re saying.

  87. Eve Fisher asks:
    >“What part of, ‘if you don’t do your job – ALL of it – you don’t fulfill your contract’ do you not understand, Kurt?”

    I’m not sure whether there’s a part I don’t understand.

    >“Frankly, I am leery and weary of all so-called religious objections these days, because they all boil down to, ‘MY religious objection trumps YOUR right to YOUR access to legal services, health care, and/or YOUR religious objection to MY decision.’”

    Your claim that all so-called religious objections boil down to that statement is absurd.

    >“From and for all the yous out there, that’s no way to run a country. Or a government. Or a democracy. Or is that the idea?”

    If you’re asking whether I’m trying to undermine representative government, the answer is no.

  88. Kurt, once again, I expect that anyone hired to process marriage licenses will process any marriage license. There should never be any situation like the “yes for John and Mary, no for Adam and Steve” scenario I describe above. There should never arise a situation where a county employee gets to go on strike for her religious beliefs against one couple, then resume performing those same duties for another couple.

    If the county wants to reorganize its job descriptions so that only willing, qualified employees are performing marriage functions, so be it. But that’s the county’s decision, not each individual employee’s, and it’s permanent, not case-by-case. The public, the citizens coming to the courthouse window, should never see that shuffling of personnel. The public should never be subjected to an employee exercising that religious objection to deny the public service, even for a second. Individuals do not get to use their public position to promote their private religious beliefs.

  89. Eve Fisher

    Religious objectors who don’t care about anyone else’s religions objections: Hobby Lobby stands out. The corporate masters didn’t care about their employees’ religious beliefs or objections, did they? But I suppose that’s okay because the corporate masters were forces for good, i.e., against women getting birth control. (Which, by the way, had never bothered them before – their old health insurance package had included it.)

    Here’s a Supreme Court decision – United States v. Lee – “When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.” (This was about having to pay Social Security taxes for employees or by employees.) But I would wager that sooner or later, SCOTUS will rule a repeat of this with the word “governmental” replacing the word “commercial.” In other words – if you take a job as a matter of choice, the limits you accept on your own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Take the job, do the job. Period.

  90. Eve Fisher

    I should have written in the first line “religious objectors who don’t care about anyone else’s rights”: sums up Hobby Lobby in one line.

  91. Cory wrote:
    >“Kurt, once again, I expect that anyone hired to process marriage licenses will process any marriage license.”

    If someone was hired to process marriage licenses before Obergefell v. Hodges, would you allow the county to designate another employee to handle them now?

    >“If the county wants to reorganize its job descriptions so that only willing, qualified employees are performing marriage functions, so be it. But that’s the county’s decision, not each individual employee’s …”

    If another employee is available to perform marriage functions, do you believe the county has the right to end a clerk’s career and deprive her of her livelihood solely because her conscience prevents her from personally issuing same-sex licenses?

  92. Eve Fisher asks:
    >“The corporate masters [of Hobby Lobby] didn’t care about their employees’ religious beliefs or objections, did they?”

    I’m not sure there’s any way for us to know.

  93. Eve Fisher

    Kurt, I think the Hobby Lobby corporate heads made it clear because they never once mentioned anything about their employees. It was just all about how they were good, Christian folks who couldn’t approve of birth control for women.

    Meanwhile, back to you: you keep asking, what if there’s another employee willing to perform the functions of the job. Okay. I’ll stipulate that sure, let that other person in the office do the job. (Although I don’t like it.)

    BUT – what if there’s NOT an another employee willing to fulfill the job description? What if every employee (1 clerk, 2 deputy clerks) in, say, the Butte County (2,249 square miles) Courthouse claims “religious objections”? Do you give them all a pass? Does the law depend entirely on the kindness of strangers? (If so, it’s no longer the law, but simply optional depending on who’s doing it.) Are you saying that the couple seeking their legal right needs to move, even while saying that the employees should all keep their jobs despite their refusal to provide legal services? And do you see any slippery slope here?

    NOTE: I ran into a court clerk who was downright hostile to helping certain members of the public (read between the lines); what if that clerk decides that it’s all religious? after all, the Old Testament has a lot to say about racial inferiority. But, of course, I could be wrong. That might never happen here in South Dakota.

  94. Eve, the Supreme Court gave us that ruling about government employees in 2006: see the discussion of Garcetti v. Ceballos raised by the ACLU in its letter this week to AG Jackley: http://dakotafreepress.com/2015/07/08/aclu-to-jackley-public-officials-have-no-first-amendment-right-to-buck-marriage-ruling/

  95. Kurt, I said the county can reorganize job descriptions as it sees fit. I’m uneasy with the county reorganizing public functions for reasons unique to the people in the office, but I won’t stop that. The main point is that whoever handles marriage licenses must handle them impartially for all legal applicants, with no picking and choosing who gets service.

    I would also say that yes, if the county has three employees whose job descriptions include processing marriage licenses, and if one of those employees refuses to process same-sex marriage applications, the county is justified in reassigning, penalizing, and/or firing that non-performing employee.

  96. Thanks for clarifying your position, Cory. I’d like to get your reaction to a possible scenario that may clarify it even more.

    Suppose Jerauld County and Sanborn County each have three employees whose job descriptions include processing marriage licenses, and one employee in each of those counties is unable as a matter of conscience to personally issue a same-sex license. Suppose each county can reorganize job descriptions in such a way that there’s no picking and choosing who gets service.

    If Jerauld County reorganizes job descriptions in that way, do I understand correctly that you won’t oppose it? And if Sanborn County fires the employee whose conscience would be violated, do I understand correctly that you say the county is justified?

    It seems we’ve come full circle to something like my original question. If another employee is available to perform the service, WHY is Sanborn County justified in ending an employee’s career and depriving her of her livelihood? What benefit accrues to anyone that counterbalances the potential chaos inflicted on the terminated employee and her family?

  97. Eve Fisher asks:
    >“… what if there’s NOT an another employee willing to fulfill the job description? What if every employee (1 clerk, 2 deputy clerks) in, say, the Butte County (2,249 square miles) Courthouse claims ‘religious objections’?”

    I’m not sure what would happen under those circumstances, and I doubt we’ll ever find out. Are there really only three employees in the Butte County courthouse?

    >“Do you give them all a pass? Does the law depend entirely on the kindness of strangers? … Are you saying that the couple seeking their legal right needs to move, even while saying that the employees should all keep their jobs despite their refusal to provide legal services?”

    No, I’m not saying any of those things.

    >“And do you see any slippery slope here?”

    Yes, but probably not the same one you see.

    >“I ran into a court clerk who was downright hostile to helping certain members of the public (read between the lines); what if that clerk decides that it’s all religious?”

    That would probably make the situation even worse.

    >“… after all, the Old Testament has a lot to say about racial inferiority.”

    Can you cite any specific examples?

  98. Eve Fisher

    There are only 3 employees in the Butte County Courthouse who are in the clerk’s office, which is the only one that can issue marriage licenses. And, In Jerauld County and Sanborn County, there is only ONE clerk of courts in each county, and while there is an on-call deputy clerk available, the Unified Judicial Services office in Pierre has to authorize each and every use of said clerk because it costs extra money every time they’re brought in (they’re really only to be used for when a trial is held in those counties, which is rare). Do you really think the bean-counters in Pierre are going to do that? (BTW – you can look these employee numbers up, just go to each County and google clerk of courts – you’ll be surprised at how few there are. This is a poor, rural state; other than Minnehaha and Pennington counties, the norm is one clerk per county with one on-call clerk who has to be specially requested. I know this, because I used to be a circuit administrator and keeping the offices staffed was part of my job)

    Re Bible passages, here’s a list of Bible passages that were used to justify slavery: http://www.religioustolerance.org/chr_slav1.htm
    or this: https://www.reddit.com/r/AskHistorians/comments/1wa6da/in_the_past_did_people_try_to_use_religionthe/
    to justify racism: http://thinkprogress.org/justice/2014/02/26/3333161/religious-liberty-racist-anti-gay/
    and
    http://www.alternet.org/belief/how-religious-liberty-has-been-used-justify-racism-sexism-and-slavery-throughout-history

  99. Eve Fisher wrote:
    >“There are only 3 employees in the Butte County Courthouse who are in the clerk’s office, which is the only one that can issue marriage licenses.”

    Are you sure the register of deeds office can’t issue marriage licenses? I was under the impression that my aunt Peggy was authorized to issue marriage licenses as a deputy register of deeds.

    >“… In Jerauld County and Sanborn County, there is only ONE clerk of courts in each county …”

    I was aware that Jerauld County no longer had a deputy clerk, but I was under the impression that Sanborn County still did. In any case, I’m asking Cory to suppose each county has three employees whose job descriptions include processing marriage licenses.

    >“… and while there is an on-call deputy clerk available, the Unified Judicial Services office in Pierre has to authorize each and every use of said clerk because it costs extra money every time they’re brought in (they’re really only to be used for when a trial is held in those counties, which is rare). Do you really think the bean-counters in Pierre are going to do that?”

    Not in the scenario I’m presenting to Cory.

    >“… you can look these employee numbers up, just go to each County and google clerk of courts …”

    Not all courthouse deputies are listed on their office websites.

    >“I know this, because I used to be a circuit administrator and keeping the offices staffed was part of my job …”

    My mom’s aunt Muriel recently retired after thirty years as the clerk of courts in Jerauld County. Do you know her?

    >“Re Bible passages, here’s a list of Bible passages that were used … to justify racism…”

    You claimed the Old Testament has a lot to say about racial inferiority. If there are Old Testament statements about racial inferiority at the links you posted, I didn’t find them.

  100. Kurt asks: “If Jerauld County reorganizes job descriptions in that way, do I understand correctly that you won’t oppose it? And if Sanborn County fires the employee whose conscience would be violated, do I understand correctly that you say the county is justified?”

    Yes and yes.

    I can affirm both statements because no one has a right to a job with the state (county, city, feds). Faced with employees who don’t want to do their jobs, the county can choose to reorganize job descriptions to accommodate that non-performance, or it can terminate the non-performers and hire people willing to carry out all required duties. If one chooses to work for the county, one chooses to obtain one’s livelihood by doing what the county tells you and what the Constitution demands. One’s freedom to apply one’s personal religious beliefs happens at the moment of choosing to take the job, not at the moment someone one’s God does not like asks for public service.

    And if the county chooses to reorganize job descriptions, it had better do so before any couple is denied or delayed service. One instance of discrimination based on an individual employee’s mistaken impression that she gets to use her public job to promote her private discriminatory beliefs, brings the lawsuit.

  101. happy camper

    In Kentucky the governor is telling one of their county clerks who won’t issue marriage licenses that he must do so or resign. But what recourse does a governor actually have? Fire elected people? What about Daugaard. Is he hiding behind Jackley? Obviously they must be talking about it. Daugaard is really the one who should step up and say South Dakota will comply with the law unequivocally.

  102. Eve Fisher

    Kurt, I know Muriel very well – we worked together back in the late 90’s. Wonderful clerk. I really enjoyed working with her.

    Back to the scenario. As it turns out, according to South Dakota Marriage Laws, it is the Register of Deeds who issues marriage licenses. And, I can assure you, there’s only one in Sanborn County and Jerauld County. Your scenario of alternative issuers doesn’t work. There simply aren’t “other employees” in any offices except those of the big counties: Minnehaha, Pennington, and a couple of others. Most counties have one employee per office. So you have to deal – Marty Jackley will eventually have to deal – with that fact. If the Register of Deeds in Jerauld County says no, I won’t issue a marriage license to gays, there isn’t anyone else there to do the job. What about that situation? That was my scenario, which you never actually responded to.

    Regarding a situation like Sioux Falls, where there well might be an alternative employee willing to do the job – none of these employees are private employees, but they are all paid by tax dollars – mine, yours, etc. – in order to do the job of upholding the laws of the people. That alone makes it possible for us, the taxpayer and thus employer, to demand that they be disciplined and even terminated if they decide to pick and choose which laws they’ll uphold. If you’re working for me, you will fulfill the job description, or we’re going to have a disciplinary action. Do it again, fired. Real simple.

  103. happy camper

    So how are these people disciplined Eve? In Kentucky people were saying the governor can’t remove an elected official but could put them in jail for not doing their job. It may just blow over and be accepted politically, but still, we have a rule of law that must be enforced.

  104. Eve Fisher

    Well, according to South Dakota Codified Law, 3-16-1: “Willful failure to perform official duty as misdemeanor. Where any duty is or shall be enjoined by law upon any public officer, or upon any person holding any public trust or employment, every intentional omission to perform such duty, where no special provision shall have been made for the punishment of such delinquency, is a Class 2 misdemeanor.”
    and
    “3-17-6. Grounds for removal of local officers from office. Any officer of any local unit of government may be charged, tried, and removed from office for misconduct, malfeasance, nonfeasance, crimes in office, drunkenness, gross incompetency, corruption, theft, oppression, or gross partiality.”

  105. Eve Fisher wrote:
    >“Kurt, I know Muriel very well – we worked together back in the late 90’s. Wonderful clerk. I really enjoyed working with her.”

    Thanks for saying so, Eve.

    >“As it turns out, according to South Dakota Marriage Laws, it is the Register of Deeds who issues marriage licenses. And, I can assure you, there’s only one in Sanborn County and Jerauld County. Your scenario of alternative issuers doesn’t work. There simply aren’t ‘other employees’ in any offices except those of the big counties: Minnehaha, Pennington, and a couple of others.”

    Are you sure the register of deeds office in Jerauld County only has one employee? I was under the impression that my aunt Peggy was a deputy register of deeds here.

    >“If the Register of Deeds in Jerauld County says no, I won’t issue a marriage license to gays, there isn’t anyone else there to do the job. What about that situation? That was my scenario, which you never actually responded to.”

    You asked about a scenario in which every employee in the Butte County courthouse claims religious objections. I responded that I’m not sure what would happen under those circumstances, and I doubt we’ll ever find out.

  106. I’d asked Cory:
    >>“If Jerauld County reorganizes job descriptions [in such a way that there’s no picking and choosing who gets service], do I understand correctly that you won’t oppose it? And if Sanborn County fires the employee whose conscience would be violated, do I understand correctly that you say the county is justified?”

    Cory answered:
    >“Yes and yes.”

    Thanks again for clarifying your position, Cory. If another employee is available to perform the service, WHY is Sanborn County justified in ending an employee’s career and depriving her of her livelihood? What benefit accrues to anyone that counterbalances the potential chaos inflicted on the terminated employee and her family?

    >“I can affirm both statements because no one has a right to a job with the state (county, city, feds).”

    Would that include a duly elected official who meets your performance standards?

    >“One’s freedom to apply one’s personal religious beliefs happens at the moment of choosing to take the job, not at the moment someone one’s God does not like asks for public service.”

    I’m aware that this is your blog, Cory, and I’m aware that I’m only your guest here, but I’ve continually clarified that I’m asking about a scenario in which there’s no picking and choosing who gets service, and your repeated resurrections and demolitions of that straw man during this discussion seem dishonest to me.

    Setting those concerns aside, is there a legal or moral basis for your claim that the free exercise of religion “happens” at a “moment”?

  107. Eve Fisher

    “You asked about a scenario in which every employee in the Butte County courthouse claims religious objections. I responded that I’m not sure what would happen under those circumstances, and I doubt we’ll ever find out.”

    Maybe, maybe not. Here’s the ultimate example: Buffalo County has Gann Valley for the county seat. I’ve been there many times, back in the day. It’s a very peaceful place, population 14 for the town, 2024 for the whole county, and a long, long, long way from anywhere else. It has a clerk of courts who commutes from Chamberlain. Another woman is both Register of Deeds and Auditor (who has been under fire, BTW, for issues about denying voting opportunities for Native Americans on the Crow Creek Reservation). There are no options, unless the law is changed so that the Clerk could issue marriage licenses. There are no other offices/officers. You’re right, it may never happen. But then again, it might. We’ll see.

  108. happy camper

    Daugaard should hear from the electorate on this. He and Jackley wanting to come up with ways to allow government employees to shirk their responsibilities sends the message gay people are still second class citizens in South Dakota. Those in social services, law enforcement, and elsewhere may decide these relationships are less recognized by their positioning, and that their own religious beliefs or just plain prejudices that should also allow them to treat gay couples differently. Discrimination starts at the top Governor Daugaard.

  109. Eve Fisher wrote:
    >“Buffalo County has Gann Valley for the county seat… It’s a very peaceful place, population 14 for the town, 2024 for the whole county, and a long, long, long way from anywhere else.”

    Gann Valley is less than 25 miles from Wessington Springs, which is the center of the known universe (ha ha). Seriously, Gann Valley is part of our school district. I know it well.

    >“It has a clerk of courts who commutes from Chamberlain. Another woman is both Register of Deeds and Auditor … There are no options, unless the law is changed so that the Clerk could issue marriage licenses.”

    Your concern seems genuine, Eve, but I don’t believe it would be difficult or costly to find an on-call deputy register of deeds to issue the very small number of marriage licenses in Buffalo County. In any case, that’s really beside the point of the questions I’m asking Cory.

  110. aren’t these “employees” jackley seeks to protect, actually elected republican officials, in most or all counties?

  111. Leslie asks:
    >“aren’t these ‘employees’ jackley seeks to protect, actually elected republican officials, in most or all counties?”

    Are you suggesting that’s the real reason Cory wants them fired?

  112. Eve Fisher

    “Are you suggesting that’s the real reason Cory wants them fired?”

    I don’t believe that for a minute – but I can believe that it’s part of the reason Marty Jackley is willing to give them a religious objection option.

  113. Kurt persists in asking, “What benefit accrues to anyone that counterbalances the potential chaos inflicted on the terminated employee and her family?” If I didn’t know better, I’d think Kurt was some sort of social democrat, all worried about the social justice impacts of hiring and firing decisions. What place does the boss have to ask about the employee’s livelihood? If I’m the boss, and I see Louie always running over to do Huey’s job, I tell Louie he doesn’t have to cover for Huey. If Huey keeps taking siestas, I fire him. Tough shiskey if Huey has trouble making rent; on my clock, he has a job to do. If I like Huey, I can rewrite the job description to shift to Louie all of the duties Huey finds undesirable… but I can also say, “I don’t have time for this hogwash. I want workers who do the job I tell them to do, not nitpickers who tell me what job they will do.”

    I also maintain there is not right to a job with the state. Is there a right to work—no, not South Dakota’s twisted definition of the term in law, but a real, moral right to participate in the workforce? We have rights as workers, but I’m having trouble figuring out how anyone has a right to a specific job. I think I can say the same about a duly elected official. Elected officials are invested with authority by the voters, and they have an obligation to follow the law and the Constitution in the performance of their duties. But they have no “right” to be an elected official if they don’t follow their oath.

    Kurt, we appear to disagree about the “straw man” nature of the argument. I’m definitely not trying to be dishonest. I’m talking straight-up respect for the law and obligations of public employees. You and Marty Jackley are trying to carve out exceptions and excuses for not doing one’s job. If counties want to go through those risky contortions to accommodate folks who oppose same-sex marriage, and if they can make those accommodations absolutely invisible to the public so that no same-sex couple ever feels discriminated against, then they may have an option to do so.

    But if the county keeps same-sex-marriage opponent Susan on the job in the Register of Deeds office, and if that person is sitting at the front desk when Adam and Steve come in all giddy for their marriage license, and if clerk Susan turns up her nose and say, “Oh, let me find someone who will serve your kind,” then bam, the county faces a discrimination lawsuit. That’s not a straw man—that’s how the law is going to work now. When you’re on the clock at the courthouse, when you represent the law, you keep your discriminatory opinions to yourself.

  114. Hear from the electorate, Happy? Well, we don’t have a measure to put on the ballot… although we should watch the 2016 Legislature for bills putting into statute the exemptions Jackley is trying to carve. If the Legislature tries that, we can raise holy heck in committee; if they pass such a law, we can refer it and make them pay at the polls.

    Barring that, We just make sure that voters connect the dots the next time Jackley appears on the ballot. Of course, that’s a gamble: Jackley is banking on their being lots of fired up voters who will mark his name for sounding the great defender of traditional marriage. But call that bet: I think we can find just a few more people who think, agree or disagree, public employees have to follow the law.

  115. Deb Geelsdottir

    A county clerk, I believe in Texas, just resigned today because she didn’t want to issue marriage licenses to everyone who is eligible. She said she took an oath to carry out the laws. Since she was no longer willing to do so, she felt she had to resign. Good for her. She did the right thing.

  116. I’d asked Cory:
    >>“If another employee is available to perform the service, WHY is Sanborn County justified in ending an employee’s career and depriving her of her livelihood? What benefit accrues to anyone that counterbalances the potential chaos inflicted on the terminated employee and her family?”

    Cory responds:
    >“What place does the boss have to ask about the employee’s livelihood?”

    The answer to your question isn’t going to be the same for every boss and employee, but the employer who’s been providing the employee’s livelihood usually won’t need to ask whether ending her career deprives her of it.

    Cory had written:
    >>>“I can affirm both statements because no one has a right to a job with the state (county, city, feds).”

    I’d asked:
    >>“Would that include a duly elected official who meets your performance standards?”

    Cory answered:
    >“Elected officials are invested with authority by the voters, and they have an obligation to follow the law and the Constitution in the performance of their duties. But they have no ‘right’ to be an elected official if they don’t follow their oath.”

    Would you say a duly elected official has a right to her job if she meets your performance standards?

    >“You and Marty Jackley are trying to carve out exceptions and excuses for not doing one’s job.”

    How do you claim to know what I’m trying to do?

    >“… if clerk Susan turns up her nose and say, ‘Oh, let me find someone who will serve your kind,’ then bam, the county faces a discrimination lawsuit. That’s not a straw man …”

    Your caricatured rude clerk is the very epitome of a straw man.

  117. In a previous comment above (2015-07-03 at 22:25), I’d written:
    >“The words below are from bestselling Christian fiction writer Frank Peretti…”

    Frank apparently announced a modified position on July 29:

    Now. Remember my idea about how to resolve the problem over religious liberty and non-participation in gay weddings by, for example, florists, photographers, bakers, and anybody else with a moral and/or religious objection?

    Well, scrap that. Throw it out. Crumple it up and throw it away. Let’s start over.

    First of all, it would be by far the best idea for all of us to familiarize ourselves with the recent Supreme Court ruling regarding gay marriage, and so I have enclosed a link to a Focus on the Family web page that includes an article and a link to all the actual text of the decision including the majority ruling and the dissenting opinions of Roberts, Alito, Thomas and Scalia. Studying this will really make the issues clear.

    Secondly, I’m now considering how the next legal argument might hinge on establishing a legal difference between any person’s right to choose not to participate in an activity they find morally objectionable, and bigotry against the persons involved in that activity. It would be great to establish through legislation and/or adjudication that non-participation in gay weddings does not comprise bigotry against gays; it only means that a person does not wish to participate in what gays DO. I may choose not to ride a motorcycle, but that doesn’t mean I am bigoted against motorcyclists.

    Thirdly, are you ready for some irony? We may continue to debate and discuss the whole matter of gay marriage, bigotry, what the Bible says or doesn’t say, what Jesus would do, and on and on and on, but legally speaking, where once all of that discussion could have made a difference in a government of the people, by the people, and for the people, it is now moot. As you will read in the dissenting opinions, our voice as the People has been cut off. We are no longer empowered to settle the matter through the democratic process this nation was founded on. Rather, five unelected, unaccountable lawyers have taken that power from we the People, have assumed it for themselves, and have imposed their view of what the Constitution SHOULD mean, and not what it means, on all of us.

    I think the bakers, photographers, and florists, and all who will now find themselves in the same jeopardy because of this ruling, should hold the line and not bend one iota. The distinction between people and what they do must be established in law, and it will probably take a long court battle to do that.

    Anyway, here’s that link: http://fw.to/Gvmg81W

    Frank

    https://www.facebook.com/officialfrankperetti/posts/1101936559833678

  118. So when the federal government states there are only certain area’s to speak (1st amendment zone’s), do we get to have you represent us there, Cory, or will you be mute on that point? Because I am following your example as federal officials they are on duty and cannot restrict our 1st amendment, or can they?

  119. You’ll need to give me some more specifics there, Dave (and could I get at least an ending initial? We get a couple three Daves here, and I’d like to be able to ekep them separate). If you’ve been following along, you know I’m a staunch defender of the First Amendment. Clarify the situation you’re asking about, and I can offer a clear position.