The Job of a County Clerk

[MineralMan]

It's really pretty simple. The County Clerk in most jurisdictions issues and records a wide variety of documents. Birth and death certificates, property deeds, liens, court judgments, bankruptcy filings, divorce decrees and, yes, marriage licenses. In some places these duties are performed by someone else, but all of those things are simply a matter of maintaining accurate public records.

What the job does not involve is making any decisions about any of those documents. So, if a couple comes in for a marriage license, there is language on the marriage license application that excludes some from being married. Not being of age, close family relationships and existing current marriages may prohibit the clerk from issuing the license. Applicants attest on the application that they may marry legally, under penalty of perjury.

But, except for legal restrictions, that's it. It's never the County Clerk's job to refuse to issue a marriage license based on his or her own preferences or beliefs. Never. The County Clerk is not empowered to make any such decisions. He or she may not approve, personally, of interracial marriages, or interfaith marriages or some other marriage between two people. The Clerk's approval is not required. What is required is that the clerk issue the marriage license.

Now, the SCOTUS has ruled that people of the same sex cannot be denied the right to marry. That settles it once and for all. Now, it's just like all of the other marriages those County Clerks may not approve of. Those wishing to marry are entitled to insist that the County Clerk do his or her legal job. It's not a matter of the personal beliefs of the clerk. Those are completely irrelevant. The Clerk's job is to issue those marriage licenses, just like every other duty.

Any County Clerk who refuses to issue marriage licenses to any couple not prohibited from marrying should be summarily fired for misfeasance. He or she has an important job to do. Refusal due to personal beliefs is grounds for immediate dismissal. Period.

[DrDan]

1. I believe it should be for nonfeasance instead of misfeasance

just making the point because I just looked up the difference and learned something

[MineralMan]

3. It could be either.

Nonfeasance is failure to perform a function. Misfeasance is using one's capacity in illegal ways. In the case of failure to issue marriage licenses to people who may marry is a combination of both, since the reason for the nonfeasance is misfeasance. Either way, it should be a offence requiring immediate dismissal. Government officials who refuse to perform the duties of their office should be fired immediately and replaced with someone who will perform those duties immediately. To do otherwise is to deprive citizens of their rights.

Bad news for these clerks. Too bad for them.

[Spazito]

12. I think it is more malfeasance...

because they can be charged for refusing to issue the licenses.

"The commission of an act that is unequivocally illegal or completely wrongful.
Malfeasance is a comprehensive term used in both civil and Criminal Law to describe any act that is wrongful. It is not a distinct crime or tort, but may be used generally to describe any act that is criminal or that is wrongful and gives rise to, or somehow contributes to, the injury of another person."

http://legal-dictionary.thefreedictionary.com/malfeasance

[MineralMan]

13. Could be. It depends on how laws are

written in each jurisdiction, really.

[MineralMan]

14. Wikipedia has a very interesting article

on misfeasance, malfeasance and nonfeasance. I enjoyed reading it just now:

https://en.wikipedia.org/wiki/Misfeasance

[ladyVet]

2. I agree with you. Do the job, or leave, the way I look at it. nt

[MineralMan]

4. How a couple denied a marriage license might proceed:

File for an emergency ruling in your local federal district court. In most states, you could probably file in your local jurisdiction's court as well, and a decision would be reached more quickly.

I'm sure there are attorneys just about everywhere who would take such an action on a pro bono basis. Few judges would refuse to order a County Clerk to perform the duties of the job. The SCOTUS decision is quite clear and transparent. A local jurisdiction's court could apply it without a problem and issue such an order.

I'm sure this action will be taken very soon in some of these recalcitrant counties. Such actions and rulings will soon put an end to all this local nonsense. County Clerks almost always delegate license issuance to deputies anyhow, so they really don't do the actual work in most counties.

[MohRokTah]

5. In many cases, these are elected officials.

Any elected official refusing to issue a license over religious objections should be summarily arrested for abuse of power.

[MineralMan]

6. That's true. They're subject to orders from the court, though.

Any local court can order a County Clerk to faithfully perform the duties of that office. Failure could result in a contempt of court ruling and jail time until they agree to perform their duties.

It's a no-brainer for most judges. Failure to perform duties, however, is not a crime in many places. But defying a court order is a reservation at the Graybar Hotel in town.

[meaculpa2011]

7. What would happen if a state, through legislation...

decides that they will no longer sanction any marriage?

[MineralMan]

8. Frankly, I doubt if any such thing will occur.

Such legislation may be introduced, but the role of states in marriage is of long standing and is an important function. For states to refuse to issue any marriage licenses would disrupt the lives of many, since proof of marriage is required for many other legal agreements. The IRS, too, has an interest in knowing who is married.

Lots of legislation is introduced for political reasons in state legislatures. Most such legislation does not pass or is vetoed by Governors. This kind of protest legislation rarely becomes law, and would soon be overturned by a federal court if it did.

Marriage is a crucial contractual issue for many reasons. Any state that abolished its role in that would have to rewrite its own tax code as a result, since taxation is often linked to marriage status. Property ownership, too, in real estate, is often tied to marriage in terms of ownership. Those laws would also have to be changed.

Abolishing the state's role in marriage is a non-starter, and most legislators will recognize that and refuse to pass such legislation.

[dixiegrrrrl]

24. Actually, abolishing marriage licenses would be a good step

and in keeping with the SCOTUS ruling.


In the SCOTUS ruling, they referred 86 times to "the right" to marry.

A right is a thing that you inherently possess as a consequence of being human.
You have the right to free speech.
You have the right to freedom of religion.
You have the right to keep personal effects, such as papers and property, free from unreasonable search and seizure.
You have the right to personal property which may not be taken from you by the government without compensation at its fair market value, etc.

At the moment any entity requires you to obtain a license you no longer have a right -- you have a privilege.

a right requires no permission from anyone to exercise.

a state does not have to issue a license in order to identify who is married for tax or other reasons, as marriages can be recorded, as they are currently , and that info sent to the state, as it is now.
People could still be married in a civil court or by clergy, as they are now.
It is just the license, the paid for "permission" that would be removed.

[onenote]

9. If by "sanction" you mean have laws authorizing someone in the state to perform weddings

it isn't going to happen, and even if it did, it wouldn't retroactively impact the status of marriage previously entered into under the state's law and the state would still have to recognize marriages performed outside the state.

[MineralMan]

10. That's another reason such protest legislation

has no chance of being passed and signed. Only really stupid, vindictive people would propose such a thing. I doubt any such laws are passed anywhere. It's just smoke signals being sent up from small campfires. Marriage is central to much of the civil law.

[MineralMan]

11. Bottom Line: County Clerks Should Just Get Over It!

Any County Clerk who doesn't want to issue marriage licenses due to some misbegotten objections should simple delegate the job to someone who is willing to do so. No-brainer.

The SCOTUS has spoken. Marriage equality is now the law of the land.

Get it? Got it? Good!

[longship]

15. A great thread.

Informative.

Thanks, MM.
R&

[MineralMan]

16. Thanks! My pleasure.

[Major Nikon]

17. Any County Clerk who denies a document for a personal reason should be fired for dereliction of duty

It should be just that simple in all cases.

[MineralMan]

18. Yup. The only fly in that ointment is that County Clerks are very often

an elected office. That complicates the matter to some degree.

[Major Nikon]

22. Then they should be impeached or recalled

Based on their actions or inaction the county can (and in this instance should) be sued with taxpayers footing the bill.

The same goes for the Texas AG who is empowering clerks not to issue such licenses.

[MineralMan]

23. Lawsuits and court orders can do the trick.

Defying a court order is a quick route to some time in the local lockup for contempt of court. I suspect that all of this will go away as soon as a few couples and their attorneys take legal action to force the issuance of those licenses.

What's going on is a desperation move on the part of a few officials. It won't be sustainable for more than a very brief time. Before long, all of that will end, I think and things will move quickly to allow everyone to marry as and where they please. I can't see any other realistic possibility, really.

The SCOTUS speaks and it doesn't take long before everyone has heard their message and moves on to other stuff.

[Spitfire of ATJ]

19. I expect any time now to hear about blood tests....

They'll talk up the need to screen for hep or aids.

[MineralMan]

20. I doubt it. These days, couples who

are already living together can skip STD tests altogether in most jurisdictions. I don't think that's likely to go backwards, really.

[Spitfire of ATJ]

21. These people exploit every loophole they can find.