Should Clerks be Required to Issue Marriage Licenses to All Eligible Couples?

As a case appealing Missouri's ban on same-sex marriage is being appealed in the 8th Circuit Court of Appeals and the Supreme Court looks to provide the pivotal ruling on the issue, a deputy clerk in Waynesville, Missouri is questioning whether she will be forced to abandon her religious beliefs in order to keep her job.  

Jennifer Schoenrock works as a deputy clerk handling court tasks, such as filing criminal records and certifying marriage licenses.  Schoenrock has made the preemptive decision that she is not comfortable issuing marriage licenses to homosexual couples: she takes no issue with civil unions, yet has qualms with certifying a license for a gay couple that uses the word marriage, when her religious beliefs tell her that she should not.  She sees approving a marriage license for a homosexual couple as abetting a sin, and as an act that does not glorify God.

According to Missouri's version of the Religious Freedom Restoration Act, of which 19 other states have a similar version, states may only "impose a 'substantial burden' on a person's religious freedom if it has a 'compelling interest' and is using the 'least restrictive means' to accomplish that interest."  If Schoenrock were to be put in a situation in which she were asked to certify a marriage license for a homosexual couple, her employer should accommodate her religious request unless there were no less restrictive means by which the government could accomplish its goal of certifying a gay marriage.  Schoenrock's employer should be able to easily meet her request so long as there is another clerk available to issue the marriage license.  

In Schoenrock's office, where fourteen other deputy clerks are available and capable of certifying marriage licenses, finding a suitable replacement to handle licenses for gay couples should not be an issue.  In the Yellowstone County Courthouse in Montana, where gay marriage is legal, however, county clerk Kristie Boetler said that if a clerk's religious beliefs were "so strong that you cannot [issue marriage licenses to homosexual couples], a job in my office is not for you."

This case is similar to those in which private-business owners were guided by their religious consciences and decided not to serve homosexual customers, yet I would also argue that this case is different in significant ways from those we have previously studied.  In situations in which an individual owns his private business I would argue that he has complete authority to determine whom he would like to serve.  In Schoenrock's case, however, she is acting as an agent of the state working at a state courthouse.  I will contend that Schoenrock should not be forced to certify marriage licenses to all homosexual couples as the Yellowstone clerk suggested; yet if no other clerks were present to handle the request, Schoenrock's status as an agent of the state administering government documents would require her to comply with the request.

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees because of their religious beliefs, unless it poses an undue burden on the employer.  I would argue that an accurate reading of this statue would prohibit employers like Boetler in Yellowstone from hiring only employees willing to certify marriage licenses for homosexual couples, but I would also argue that in some circumstances accommodation is impossible and that an employee might have to issue a license that conflicts with his personal religious beliefs.  If, for example, all fourteen other clerks in Schoenrock's office were not present at the time a gay couple entered the courthouse to receive their marriage license, Schoenrock should be compelled to serve the couple and certify their license.  Not doing so would place an undue burden on Schoenrock's employer and would not be satisfying the state's compelling interest of granting a marriage license to a couple requesting one.

When determining if there are situations in which a clerk might have to abandon her free-exercise rights, I would argue that they exist, but should be avoided and accommodated whenever possible.  The reason that this case is different from the baker, for example, is that a baker owns her own shop and conducts business as she pleases, while a courthouse clerk works for the state doing state business.

What do you think? Are there situations in which you think a clerk might have to abandon her free-exercise rights in order to satisfy the interest of the state, or should First Amendment rights always prevail?