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.)

Jonathan Herland, a 29-year-old Canadian who immigrated to Israel four years ago, and Ayal Walerauch, 26, have lived together for two years. In July 2005 they wed in a civil ceremony in Toronto. However, the Interior Ministry refuses to recognize their marriage.

In March, two homosexual couples petitioned the High Court under similar circumstances. Both couples married in Canada, and had the marriages approved by Israeli consuls there.

In their petitions ... the couples argue that when the Population Registry is approached to change a person's marital status, High Court precedent forbids the Registry from making religious considerations as long as the action has been legally recognized abroad.