Yesterday I posted about civil servants who defy the law regarding gay marriage by performing a positive act (i.e., illegally marrying gay couples in defiance of state law).
Today, Downtown Lad asks the reverse question -- what if a civil servant defies gay marriage law by performing a negative act?
In Canada, the justice minister said that civic officials cannot be forced to perform gay wedding ceremonies, if it violates their religious beliefs.
I suppose that is an ok compromise for the time being, but I still think it's wrong. I mean, would anyone say it's acceptable for the following actions to take place:--It's ok to not perform a wedding ceremony between a mixed-race couple, since it violates their religious beliefs (the Bible does forbid this).
--It's ok to not perform a wedding ceremony for a Jewish couple, since it violates their religious beliefs.
--It's ok to not perform a wedding ceremony for someone who is already divorced, since it violates their religious beliefs.
...It's one thing to say a private citizen (i.e. a minister, rabbi, etc.) shouldn't have to perform a gay wedding ceremony. Nobody is objecting to that. Just as a priest doesn't have to marry a Jew, and a Rabbi doesn't have to marry a Catholic.
But a public official should perform these tasks. If he refuses to, then fire him and let him find a new job.
As a question of political theory, I think Downtown Lad's exactly right. I wonder, though, what the proper framing of the issue would be in the U.S. from a constitutional perspective. A due process violation? Equal protection? Fundamental rights? Privileges and immunities (I like the sound of that one -- bring it back from the dead!).
If a town has ten judges and two refuse to perform gay marriages but the other eight pick up the slack, then is there a constitutional violation? If West Hicksville has no willing civil servants but East Hicksville does, then do we invoke some kind of "undue burden" test as to whether a gay couple can be required to travel to the neighboring town?
I also wonder whether there are any modern examples of such behavior, especially in the period immediately following Loving v. Virginia, 388 U.S. 1 (1967) (anti-miscegenation laws violate equal protection), which DL invokes (though not by name).
