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Indiana clerk who refused same-sex marriage license loses lawsuit

December 19, 2016

A southern Indiana deputy clerk who was fired after she refused to issue a marriage license to a same-sex couple lost her civil-rights lawsuit against the county clerk. Her suit claimed religious discrimination on the basis of her avowed Christian belief that same-sex marriage is “against God’s law,” which is “above legal law.”

Harrison County deputy clerk Linda G. Summers refused to issue a marriage license to a same-sex couple that came to the courthouse in Corydon on Dec. 8, 2014. Two months earlier, the Supreme Court of the United States declined to take the appeal of Baskin v. Bogan, 766 F.3d 648, 672 (7th Cir. 2014), in which the 7th Circuit Court of Appeals struck down Indiana’s ban on same-sex marriage.  

Shortly after the ruling, and based on instructions to county clerks from the office of Indiana Attorney General Greg Zoeller, Harrison County’s elected clerk, Sally Whitis, sent an email to employees that said issuing licenses to same-sex couples was a duty of employment.

The email read in part, “Even though it may be against your personal beliefs, we are required by state law to process (same-sex marriage) applications. We are only doing the paperwork and not performing their ceremony. I expect everyone to please comply.”  

Despite the ruling and instruction to staff, Summers told Whitis that she could not process the license for a same-sex couple that came to the office weeks later. When she refused, Whitis took the form from Summers and processed it herself, according to the record. Afterward, Whitis told Summers such a refusal couldn’t happen again, because it was her job.

The next day, Summers gave Whitis a letter that requested a religious exemption from issuing marriage licenses to same-sex couples, after which Whitis fired her for insubordination. Summers then filed a religious discrimination suit under Title VII of the Civil Rights Act.

Judge Richard Young of the U.S. Court for the Southern District of Indiana, who authored the Baskin opinion, on Thursday granted summary judgment in favor of Whitis and the Harrison County defendants.

“In the end, Summers should have put her personal feelings aside and heeded the command of her employer. She was certainly free to disagree with the Seventh Circuit’s decision, but that did not excuse her from complying with it.  When Summers refused to process a marriage application for a same-sex couple, Defendants were within their rights to terminate her employment as a deputy clerk for insubordination,” Young wrote.

He wrote the court didn’t doubt the sincerity of Summers’ religious belief that people of the same sex should not be allowed to marry. “However, that belief, no matter how sincerely espoused, does not objectively conflict with the purely administrative duty to process marriage licenses. Summers’ desire to avoid handling forms related to activities of which she personally disapproves is not protected by federal law. Title VII is not a license for employees to perform only those duties that meet their private approval. Therefore, the court holds Summers has failed to establish that her religious practices were in conflict with her duties as a deputy clerk.  This is fatal to her claim under Title VII.”

Young wrote that even if Summers established a religious conflict, it is with the 7th Circuit and not her employer, which was expressly forbid by the court from enforcing Indiana’s same-sex marriage ban. He relied on the holding of Miller v. Davis, 123 F. Supp. 3d 924 (E.D. Ky. 2015), a highly publicized case in which Rowan County, Kentucky, clerk Kim Davis was enjoined from her policy of not issuing marriage licenses to same-sex coupled based on her religious beliefs. In that case, the federal court ruled issuing a marriage license “merely signifies that the couple has met the legal requirements to marry. It is not a sign of moral or religious approval. The State is not requiring Davis to express a particular religious belief, nor is it forcing her to surrender her free exercise rights in order to perform her duties.”

The case is Linda G. Summers v. Sally Whitis, et al., 4:15-cv-93.

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