ACLU to Jackley: Public Officials Have No First Amendment Right to Buck Marriage Ruling

Last week, Attorney General Marty Jackley told public employees that they could choose not to issue marriage licenses to couples their religion tells them not to like. I responded that upholding the Constitution (as now explained by Obergefell v. Hodges) and doing one’s job is not optional for public employees.

Today, the American Civil Liberties Union of South Dakota weighs in on my side… or, more appropriately, on the side of the rule of law. In this letter to AG Jackley, the ACLU says public employes must serve all Americans impartially:

Your statements suggest that the Constitution requires and authorizes the state to create a safe harbor for public officials and employees who have religion-based objections to the marriage rights of same sex couples. As decribed more fully below, government offices should be equally open to all couples, including same sex couples. County officials who have a duty to uphold the law are not able to discriminate against individuals based upon their own religious beliefs. They have a duty to impartially administer the law to all citizens [Elizabeth A. Skarin and Courtney A. Bowie, ACLU-SD, letter to Attorney General Marty Jackley, 2015.07.08].

The ACLU notes that all public officers in South Dakota swear an oath, prescribed by SDCL 3-1-5, “to support the Constitution of the United States and of this state, and faithfully to discharge the duties” of their office. First Amendment religious rights (here, the right to object to same-sex marriage based on one’s Biblical beliefs, or Sharia law) do not apply to the same extent when an individual steps into a public job:

Although county clerks have every right to advocate their personal views when acting as private citizens, public officials acting in their official capacity do not have unfettered First Amendment rights. “When a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom.” Garcetti v. Ceballos, 547 U.S. 410, 418–19 (2006) (concluding that acts taken in official capacity are not protected by First Amendment). While people of faith “may continue to advocate” and “teach” contrary views on marriage, Obergefell at 27, government officers are not free to ignore the Court’s directive when acting in their official capacity [ACLU to Jackley, 2015.07.08].

The Garcetti ruling always gives me pause, because it reminds me that whenever I step into the public classroom to teach, I leave some of my First Amendment protections at the door. But such is the sacrifice teachers, county clerks, police, and other civil servants make to serve their fellow citizens.

31 Responses to ACLU to Jackley: Public Officials Have No First Amendment Right to Buck Marriage Ruling

  1. Paul Seamans

    And that, my friend, is one of the many reasons that I am a proud, card carrying member of the ACLU.

  2. Wayne Pauli

    Fad to the Legislative session of 2014, before Borofsky left town, he made a big push for us to go to the Madison hosts the legislature day. Part of the itinerary was to have a presentation by Jackley at the new law enforcement “academy” (for lack of a better word). I had never heard him speak before. he is not gubernatorial to say the least. Not saying he is not going to run, but Democrats of SD he is not a strong candidate.

  3. Wayne Pauli

    Fade, not fad…can I buy an e?

  4. No problem, Wayne! 2.718281828…

    Wayne, I know what you mean about Jackley’s presentation skills. Your story reminds me of his performance in that fake alcohol PSA last April:

    But a guy doesn’t have to be a spectacular orator to understand the First Amendment and the obligations of public office, as laid out in the ACLU’s letter. I need to get a membership card like Paul’s!

  5. mike from iowa

    Too bad they couldn’t have slapped Jackley around a little while they explained the facts of life to him. You have the right to remain silent-whack! Anything you say will be used against you-kapow! Just kidding-kinda.

  6. Roger Cornelius

    A republican running for governor of South Dakota doesn’t need to have any great oratory skills, he only needs to have an (R) after his name.

    Since the Supreme Court ruling on marriage equality, I’m not aware of any county clerks that have refused to issue a marriage license, lots of threats and stupid comments, but nothing solid, yet.

    It is likely there will be a test case in the future if the Jackley’s of the country don’t absorb the ACLU’s opinion.

    Jackley’s opinion is just one of many to come, we can look forward to 40 years of politicians and legislatures trying to get around the law.

  7. Don Coyote

    So why is the Brain Trust™ at the ACLU citing Garcetti v. Ceballos, a free speech case, when Jackley is referencing a religious liberty argument? While both rights are part of the First Amendment, so are the rights of Press, Assembly and Petition. Are they all the same? Why shouldn’t a religious argument deviate from a speech argument?

    And while all public officers in South Dakota swear an oath “to support the Constitution of the United States and of this state, and faithfully to discharge the duties” of their office, the State’s Constitution guarantees. “No person shall be denied any civil or political right, privilege or position on account of his religious opinions”

    Also it is mindful to remember that the Bill of Rights is considered by it’s Preamble to be “valid to all intents and purposes, as part of the said Constitution.” It appears we have a Constitution in conflict with itself bringing to fruition the fear as the minority decision in Oberfegell v Hodges stated, “it appears all but inevitable that the two will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples.”

  8. Don, don’t be dense: when rights come into conflict, one has to give. Garcetti makes clear that there actually isn’t a conflict here, because in a conflict between a citizen seeking the government’s protection of her rights and a government employee seeking to make a personal statement of belief instead of carrying out his state duties, the citizen has a Constitutional claim and the government employee does not.

    But Don is no denser than AG Jackley, who boldly and applaingly rebuffs the ACLU thus:

    “It is disappointing to learn that the ACLU, who in their own words, works to “defend and preserve the Constitution’s promise of liberty for everyone in our country”, is now choosing to place certain Constitutional Rights ahead of others.

    As South Dakota’s Attorney General, I do not have the luxury of ignoring the long-established law requiring Constitutional Rights to coexist or overlooking federal requirements calling for reasonable accommodations to protect the Constitutional Rights of all individuals.

    As Attorney General, it is not my intent to ignore established law and sue a county or arrest a county employee for exercising the well-established Constitution Right to the Freedom of Religion given that same-sex couples have been and are receiving marriage licenses in South Dakota. Rather than accepting the ACLU’s position, I support commonsense solutions protecting everyone’s Constitutional Rights in South Dakota which ensure same-sex couples continue receiving marriage licenses as now required by law [Attorney General Marty Jackley, press release, 2015.07.08].

    Great Calhoun‘s Ghost! Jackley really is George Wallace at the university door, vowing not to enforce the law of the land. County employees have no civil or political right to have government jobs. They have no civil or political right to refuse to carry out their sworn duties.

  9. Don-

    Under this thinking, Eisenhower should have done nothing to force Gov. Wallace to accept students in public education. There were many then and probably a couple now that believed it was a religious violation to allow the mix of the races. If a conflict always rests with the individual, then people can choose not to pay taxes because they may be used to violate personal religious beliefs. We constantly have a Constitution in conflict. That is why we have a Supreme Court rule on the matters.

    The expression of religion in the public is a form speech/expression. That is why I would cite a free speech case.

    Finally, replace “same-sex couples” with “inter-racial couples” in your last sentence and we see the same “conflict” that was decided in Loving v. Virginia.

  10. All Jackley is doing here, is working the media. He is being splashed all over TV, and newspapers – with his name fighting for “conservative” values. All this is free publicity – getting his name out, and prepping for the run for Governor.

  11. MJL develops this thinking in his strong blog post on Jackley’s George-Wallace response:

    Working the media—Joe K, is there any chance that staging this fight could backlash on Jackley in a 2018 run? How many voters will look at MJL’s argument and vote to prevent South Dakota from having George Wallace as Governor?

  12. Joe K nails it. This is no profile in courage for Jackley. It’s exactly the opposite. It’s a creepy pander to the worst sentiments held firmly by bigots to generate some cheap headlines. It’s what cowards do best because they lack the moral fiber, the integrity and the courage to speak truth and act lawfully in the face of adversity with some of their voter base.

    This is typical for a spineless panderer like Jackley. Just look at his record of acquiescing to the state’s power structure throughout the criminal racketeering scam under his employer and the current governor. He won’t bring down the hammer, speak truthfully and act lawfully when criminals are fleecing millions from a federal program and evading banking and tax laws of the state. He’s the monkey at the end of the organ grinder’s rope.

    The funny part is why would Jackley encourage local government officials to step up and do their jobs when he himself ducked and dodged his sworn responsibilities throughout the Rounds Racketeering Scam? In this, at least, he’s consistent.

    Jackley hopes his shameful George Wallace imitation will earn him another step up to being governor or a member of Congress. He is mistaken. People have memories and they have standards of decency.

  13. Since there is no examples of anyone being turned away from obtaining their marriage license, Jackley will have no backlash on this. I really believe all of this is just political grandstanding and Jackley attempting to make the case that he is truly the conservative hero that South Dakota “deserves”. Sadly, many will fall for it.

  14. Don Coyote

    @cah: Your Wallace analogy fails because Wallace refused to allow blacks to be admitted to white colleges after Brown v Education struck down the “separate but equal” principle ending state segregation Jackley on the other hand did not say he wouldn’t issue marriage licenses in defiance of Obergefell v Hodges. In fact he explicitly stated that he did not “have the luxury of ignoring the long-established law requiring Constitutional Rights to coexist or overlooking federal requirements calling for reasonable accommodations to protect the Constitutional Rights of all individuals.” What Jackley has stated that there would be no retaliation (firing, disciplinary action, lawsuit) for a State employee who refused on religious grounds to issue a marriage license to a same sex couple. The State will still issue a license either by using an employee that has no such objection or by having another county issue the license. Both rights are protected through reasonable accommodation. No harm, no foul.

  15. Don Coyote

    @MJL: Your argument that the States non-recognition of same sex marriage is equivalent to the illegality of interracial marriage fails because 1) same sex marriage was never illegal only not recognized by some States. However interracial marriage was prohibited by law in some states. In the case of the Lovings, they were legally married in Washington D C and upon returning to Virginia they were tried and convicted under Virginia’s miscegenation laws and sentenced to 1 year in jail. Please show me the case law where a same sex couple was married in a state that recognized such a marriage and was convicted and sentenced when moving to a state that did not recognize such a marriage. And 2) Loving v Virgina affirmed the institution of traditional marriage (1 man 1 woman) while same sex marriage redefines that institution. Chief Justice John Roberts stated as much in his dissent in Obergefell v Hodges: “Gay couples seeking to marry are not seeking to join the institution of marriage. You’re seeking to change what the institution is.”

  16. And so it begins….. make way for the pedophiles, the polygmists, and oh…. I think I would like to ‘marry’ my brother or maybe my sister. It is just one hypocritical ruling after another….more bad law ala Roe v. Wade… Is anything ‘wrong’ in the liberal donkey’s world?

  17. JK Mike from Iowa? I find it ironic that you used the phrase “facts of life.” I think all of you need to read first the Constitution…. then read a few Orwell or Huxley novels. Now that the basic first year curriculum in law schools has been thrown out, you academically sheltered folk should really just change the definition of legal… you are all factophobic…

  18. Bill Dithmer

    “The State will still issue a license either by using an employee that has no such objection or by having another county issue the license. Both rights are protected through reasonable accommodation. No harm, no foul.”

    My guess is that by “no harm no foul,” you arent talking about both the civil servant, and the one getting the license. Say what? Send them to the next county. No harm there just extra expense. What would happen if that county also sent them down the road.

    No harm no foul, so the embarrassing situation created by an employee telling someone that because they dont feel right about same sex marriage they cant in good concience give them that license. It seems you only want the instrument to blow in one direction.

    Using that same logic a same sex couple could demand a person from another office in the courthouse wait on them because they just didnt like the cut of the civil servants jib.

    The only way this works is if everyone does the job they are, or were hired to do. No exceptions, no excuses. Anything else is inappropriate, an insult, and as we speak illegal.

    ” Gay couples seeking to marry are not seeking to join the institution of marriage. You’re seeking to change what the institution is.”

    Yup, and it is changed now.

    The Blindman

  19. sorry… the employees’ rights extend beyond the ‘rights’ of the beneficiaries of the constitutional change (bad law) If I were the employee, the first thing I would do is bring up job description, at the time they started the job… fundamental to their conscience exemption.

  20. looks like a home run bill. nice swing.

    coyote, your “analogy/argument” fails. woof.

  21. Don, you imply that Jackley would be the one doing the firing. That’s not his job, nor could it ever be. There is harm and there is foul when government employees refuse services that citizens rightfully expect. It is not a constitutional right that a public employee keeps a job that he/she refuses to do and is expected by law to do. This applies to administering a marriage certificate to a same-sex couple as well as to a marriage between races. You can’t make the argument for one but not the other. They have equal protection and the SC made that crystal clear. The government employee has less ability to refuse lawful services than a private business, the beloved and ridiculously hallowed wedding cake bakers. The product the government employee renders belongs to the entire public. The cake belongs to the baker unless he/she chooses to sell it.

    What pinheaded blowhards like Jackley are doing is trying to unsettle business that got settled decades ago. Government is not the property of the narrow segment of our society who are white, over-50 Christian fundamentalists.

  22. leslie… your statement that coyote’s analogy failed is wrong.. the comparison of changing the definition of marriage to race issues is the bad analogy…the core meaning of marriage…”one man one woman” is what we are discussing. changing the gender vs changing the race is “apples to oranges”…. you lose leslie…admit it.

  23. bearcreekbat

    I wonder if Jackley is making such off the wall public statements in the hopes of being chosen by Donald Trump as his VP running mate?

  24. In all the years I’ve debated these ethical issues, and the underlying reason for the ethical choices, the people who cannot stand on facts, nor stick to the basic point of the disagreement, are the first ones to deflect and begin the name calling. factophobia …. always….

  25. bearcreekbat

    Okay simple, you seem to be trolling, but I’ll bite anyway. Can you identify the “fact,” not public policy, religious dogma, or opinion, that “the core meaning of marriage is one man one woman”?

  26. mike from iowa

    Little Ricky Sanitorium,cleverly disguised as simple, wants to marry his dog. Have at it fella. Just make sure it or you has had factophobia vaccinations.

  27. mike from iowa

    Most amazing is how whiny wingnuts demand special rights of their very own so their widdle feelers don’t get hurt. Wah,wah!

  28. Don, stop being deliberately obtuse and read Jackley again. He’s not vowing to uphold Obergefell v. Hodges. He’s saying that he can’t ignore the imaginary Constitutional rights of public employees to refuse to do their jobs and uphold the Constitution.

    What if every employee in Lake County refuses to issue a marriage license to a same-sex couple, just moments after or moments before issuing one to a heterosexual couple? Who cares if Lake County Residents X and Y can drive around kingdom come and find an official from another county who will uphold his Constitutional rights—the lawsuit starts the moment the last person in the Lake County Courthouse says, “No can do, Jesus says so.” A county offering services to only some residents, based on personal religious belief, triggers a lawsuit that AG Jackley would do well to avoid by issuing sterner direction to the counties based on real case law and the Constitution: All public employees must carry out their sworn duties. Instead, with his pandering, Jackley is opening himself up to be a party to any of these suits against counties, because he is creating the false impression that they can get by with playing George Wallace. Jackley may not come after them, but the courts will, and responsible county commissioners should.

    Again, here’s the common-sense solution: if you hold religious beliefs that conflict with the duties of public employees, don’t seek public employment. We’re not drafting soldiers here and thus facing an obligation to allow for conscientious objectors. Working for the state (county, city, federal government) is a choice. If you can’t fulfill the obligations of that choice, don’t apply.

  29. “Simple”, you’ll get more facts here and a higher fact-to-personal insult ratio than on any other blog in South Dakota. Pay attention.

  30. 96 identifies what really has white Christians like Jackley nervous. Christians don’t own the government. The Constitution is not a book of the Bible. America and the Constitution are for everybody, black and white, straight and gay, Christian and not. Our history has been a march from exclusivity to inclusivity, from monarchy to republic to democracy (though oligarchy has lingered and fought for control throughout). The state must tolerate private individuals expressing whacked-out ideas and flying traitor flags, but the state itself must not make such expressions, and it can demand that its employees uphold that principle, even when that includes setting aside one’s Christian preaching and stamping a piece of paper for people one does not like.

  31. larry kurtz

    Howz that comment policy from anonymi going, Cory?