Topics Ethics

Question Recently the headlines have reported some clerks of the court refusing to issue marriage licenses to same-sex couples in states where same-sex marriage has been recently legalized. If such a person has strong beliefs about the immorality of gay marriage, are they acting ethically if they refuse to issue these licenses?

Accepted:
April 22, 2009

Comments

No, they are not. They are violating the legitimate rights of the people who are applying for the license.

This is the sort of place that a comparision to inter-racial marriage is worth making, even though there are lots of differences between the two cases. It really did happen that inter-racial couples were denied marriage licenses to which they were legally entitled, and the clerks who refused to issue such licenses may well have been, and probably were, acting out of "strong beliefs about the immorality of [inter-raical] marriage", beliefs that may, just like some people's beliefs about gay marriage, have been founded on their religious views. Unless we can find some relevant difference between these cases, then, we shall have to say the same thing about them.

People nowadays seem to me to forget how widespread opposition to inter-racial marriage once was. States had and enforced "anti-miscegenation" laws because very large portions of the populations of those states wanted to have such laws. So, again, the comparision between gay marriage and inter-racial marriage may not be perfect---of course, it isn't---but that does not mean that it cannot be used to throw real light on the issues involved. In particular, trumpeting this sort of issue as one of "religious freedom" looks problematic, since such a concern could have been, and very probably was, raised in the case of inter-racial marriage, too.

That said, there can of course be cases where conscience dictates that one act in opposition to the law. That is what civil disobedience is. But it is part of civil disobedience that one openly acts in violation of the law, and that one is prepared openly to accept the usual consequences of doing so. If the clerks in question are prepared to accept being fired or fined for their actions, as a way of drawing attention to what they regard as unjust laws, then and only then are their acts ones of civil disobedience. And, indeed, then, and only then, would I see what they were doing as honorable, even if based upon what I would regard as unfortunate views.

The final thing to say, however, is that it is very hard to see how forcing a government employee to issue a marriage license to a gay couple violates any right of the employee's, or even why it makes even a little sense that the employee should object to being asked to issue such a license. The fact that the employee wishes the law were different, or thinks the people to whom s'he is issuing the license are going to hell, or who knows what, is no reason at all, so far as I can see.