Monday, April 20, 2015

Utah Law Creates Uncertainty In Protections For County Clerks Refusing To Officiate At Same-Sex Marriages

Yesterday's Deseret News reports that in Utah, county clerks are closely examining one provision included in SB 297 titled "Protections for Religious Expression and Beliefs about Marriage, Family, or Sexuality." The law, signed by the governor last month and effective May 12, generally protects religious officials and religious organizations from being required to participate in, or furnish goods or services to, marriage ceremonies that violate their religious beliefs. (The 10th Circuit struck down Utah's ban on same-sex marriages last year. See prior posting.) SB 297 also protects individuals holding business or professional licenses from sanctions for expressing their religious views about marriage or sexuality in a nonprofessional setting. However amendments in SB 297 to Utah Code Sec. 17-20-4 for the first time require county clerks to assure a civil marriage official is available. It provides that county clerks shall
establish policies to ensure that the county clerk, or a designee of the county clerk who is willing, is available during business hours to solemnize a legal marriage for which a marriage license has been issued.
Designees do not need to be employees of the clerk's office.  It can be anyone in the county.  According to the Deseret News:
 Offering couples a list of designees seems to be the route many county clerks are going, though the definition of "designee" might be open to interpretation.
Some county officials believe it would allow them to delegate a person of their choosing such as a family member or friend to perform the ceremony on a one-time basis, something county clerks could do until the Legislature took that authority from them 10 years ago.
But that also raises the possibility that if a grandfather, for example, were designated to marry his granddaughter and her fiancé, he would be obligated to marry any couple who asks from then on.