A Stitch in Haste

(NOTE: See major update below...)

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).

MAJOR UPDATE: Can't fault them for their consistency --

Twenty marriage commissioners -- the people who perform civil weddings -- have quit their jobs in two [Canadian] provinces because they object to same-sex marriage.
...
In all cases they commissioners, who are licensed by the provincial governments, quit saying gay marriage is against their religions.
...
[G]ay and lesbian couples wishing to marry won't have any trouble finding someone to perform the ceremonies. There are 321 marriage commissioners in Saskatchewan, and the 8 who quit have been replaced.

(Guest-posted previously at Freespace.)