SIOUX FALLS, South Dakota -— County officials have a duty to impartially administer the law and cannot choose to opt out of issuing licenses to same-sex couples if they have religious objections, the American Civil Liberties Union said Wednesday in a letter to the state attorney general.
In the letter sent to Attorney General Marty Jackley, the ACLU of South Dakota takes issue with comments he made in a July 2 interview with The Associated Press. The attorney general said it would be a “commonsense solution” for a county employee with religious objections to have someone else issue a license.
“We recognize that religious liberty is a fundamental American value protected by the First Amendment,” the ACLU wrote, “but that liberty has never meant that government officials can rely on their personal religious beliefs to discriminate against citizens seeking vital government services.”
Jackley made the comments last week while discussing the impacts the ruling from the U.S. Supreme Court could have on religious liberties. Along with 14 other attorneys general, Jackley sent a letter to congressional leaders urging them to protect religious freedoms in light of the ruling.
Jackley said one county employee had asked him hypothetically what would happen if a public employee was morally opposed to issuing a marriage license to a same-sex couple. He said Wednesday the issue has not yet come up in South Dakota and that his stance merely reflects “established law.”
“It is disappointing that the ACLU has chosen to place certain constitutional rights ahead of other constitutional rights,” Jackley said Wednesday. “As South Dakota’s attorney general, I do not have the luxury of ignoring the law requiring constitutional rights to coexist or ignoring the federal law requirements to make reasonable accommodations to protect the constitutional rights of all involved.”
If another employee wasn’t available, Jackley said last week the state or another county could issue a license. He said it’s not unusual for other government offices to step in when there’s a conflict elsewhere.
The ACLU said Jackley’s suggestion that the state’s duty to issue marriage license to same-sex couples is met if couple’s must go elsewhere for a license “misses the mark.”
“To state the obvious, forcing same-sex couples to drive to a separate county to obtain services that heterosexual couples can access in their home county is not equal treatment,” the organization wrote.
Dale Carpenter, a constitutional law scholar at the University of Minnesota, said county employees act on behalf of the state government, which now cannot discriminate against same-sex couples when issuing marriage licenses.
“These are not private employees of businesses. These are representatives of the government,” he said. “It’s not their business to act on their conscience, it’s their business to enforce the law.”
Carpenter, who has filed briefs in support of same-sex marriage in the past, said even if a couple didn’t have to travel anywhere else for a license, an official’s refusal to issue a license would still raise a “serious constitutional question” under the equal protection clause of the U.S. Constitution.
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