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Do Court Clerks Need to Issue Same-Sex Marriage Licenses?

By Christopher Coble, Esq. on August 03, 2015 | Last updated on March 21, 2019

Despite the Supreme Court ruling that gave same-sex couples the right to get married, many county court clerks have refused to issue marriage licenses to same-sex couples, citing their anti-gay religious beliefs. In response, same-sex couples and in some instances the American Civil Liberties Union have filed lawsuits trying to force clerks to issue marriage licenses, regardless.

Who is right? While most of these cases are pending, let's take a look at the conflicting Constitutional protections.

The First Amendment and Freedom of Religion

Marriage licenses are issued by county courts and the clerks that staff them. While courts can also perform marriage ceremonies, the current controversy only involves issuing the license, a prerequisite to be legally married.

County clerks like Kim Davis in Kentucky and Katie Lang in Texas have refused to issue or delayed issuing marriage licenses, citing the First Amendment's protection regarding the free exercise of religion. (Elsewhere, Tennessee State Representative Rick Womick urged county clerks to ignore the Supreme Court's ruling.)

While the government may not compel a private party (like a pastor or a church) to perform same-sex marriage services, and there is no federal law that requires private businesses to provide same-sex wedding services, the issue of government officials refusing to perform a public duty based on religious conflict is a new one.

The Fourteenth Amendment and Equal Protection

In the end, county clerks will likely need to issue same-sex marriage licenses. That's because the Fourteenth Amendment prohibits states from denying "any person within its jurisdiction the equal protection of the laws." And since county clerks are government employees, they are acting as the state in their official capacity.

By refusing to issue same-sex marriage licenses, county clerks are denying same-sex couples the equal protection of federal marriage law. And where state and federal law conflict, federal law reigns supreme.

While it remains to be seen how courts will rule on these county clerk cases, it's hard to see them permitting clerks to discriminate against same-sex couples. If same-sex couples have the legal right to marry, clerks will likely be obliged to provide them with marriage licenses.

If you've been denied a marriage license, you may want to talk to an experienced family law attorney about your options.

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