No. of Recommendations: 2
The government doesn't need to provide an alternative. The government employee should be doing their job, PERIOD.
The Constitution has a special carve out for religion, that can be interpreted as a license for religion based bigotry. As I read the 14th, seems the burden is on the state to not infringe the couple's rights, but the state is also not allowed to infringe on the clerk's "right" to religion based bigotry. The clear solution to me is the burden is on the state to find someone willing to issue the license, a clerk in another county, or a judge, and deputize them in the county where the objecting clerk is, to issue licenses the local clerk refuses to issue. The process must be barrier free, to the couple. They apply for the license in their local clerk's office. The application is faxed or FedExed to wherever the deputized person works, for approval, and the license faxed or FedExed to the couple. That way, the clerk's right to religious bigotry is not infringed, and the couple's right to equal protection is not infringed.
A number of years ago, Texas had a sodomy statute that only applied to gay couples. The same act was perfectly legal for a hetero couple. Originally, the SCOTUS upheld the Texas statute, using some twisted logic to interpret I forget which clause of the Constitution. Years later, the Texas statute was again brought before the SCOTUS. This time, the court overturned the law, doing so by an interpretation of the same clause of the Constitution, twisted the other way. In her opinion, Justice O'Connor said the equal protection clause would have also made a good argument for overturning the statute.
I would say the equal protection clause applies to the marriage license case just as much as it would apply to the sodomy statute. The state is not allowed to infringe anyone's rights due to a variable like the gender of their partner.
Steve
