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.