Hutchinson says clerks have no discretion on issuing marriage licenses; one resigns rather than issue | Arkansas Blog

Monday, June 29, 2015

Hutchinson says clerks have no discretion on issuing marriage licenses; one resigns rather than issue

Posted By on Mon, Jun 29, 2015 at 2:43 PM

Gov. Asa Hutchinson, in simply upholding the rule of law, again manages to look moderate by comparison with many others in his Republican Party today. He said flatly that county clerks have no discretion in Arkansas. They must fulfill the ministerial duty of issuing marriage licenses, a procedure that, with no software, won't even require their signature.

Steve Brawner at Talk Business reports on Hutchinson's response to questions about Sen. Jason Rapert's social media yammering about clerks resisting the issuance of licenses. Hutchinson, a lawyer, said in more even tones what I said last night about Rapert.

“You cannot deny as a state or governmental entity a marriage license because it would be a same sex couple, and so the county clerks under my interpretation do have a nondiscretionary function of issuing those marriage licenses,” he said

Hutchinson said granting a same-sex marriage license is simply a “ministerial act.” New software will not require clerks to sign the document.

Hutchinson said churches and individuals outside of government have a First Amendment right not to preform a gay marriage. However, he said uncertainty remains regarding how the ruling overall will apply to private businesses and nonprofit organizations. He said the Religious Freedom Restoration Act passed by the Legislature earlier this year will provide a “framework for those issues to be resolved.”

It would be nice — and good for Arkansas business — if Hutchinson would say he doesn't see the performance of non-religious acts — selling a cake or a doughnut, for example — as something that should be withheld on the basis of the sexual orientation of the person seeking to make the purchase. Or a job. Or housing.

But given resistance in Alabama, Mississippi and Texas to following the rule of law, Hutchinson's response and Attorney General Leslie Rutledge's similarly clear guidance on government functions are a welcome differentiation.

Clerks, of course, need not issue marriage licenses to gay people. They can quit their public teat jobs and go home, leaving the easy work, good pay and fine benefits to others who WILL fulfill the oaths of office.

UPDATE: Channel 4 reports the Dana Guffey, the Cleburne County clerk, has announced her intention to  resign as a result of the ruling. Proper choice if she feels treating all couples with dignity and in accordance with the U.S. Constitution violates her religion. The Quorum Court will appoint a replacement. Guffey, clerk for 24 years, told Claudia Lauer of the AP that she wasn't acting out of "hate" but she had a moral objection to issuing such licenses. Good riddance to all who won't perform duties of taxpayer-paid public office.

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