By the end of last week, the gays got married...even in San Diego County. But things turned a little weird for San Diego County Clerk Greg Smith, who was confronted with at least 14 employees who said same sex weddings and their religious beliefs did not mix. It was the first time gay marriage opponents successfully, and boldly, played the religion card at his office...and possibly anywhere else in the state.
Last Tuesday, at West Hollywood Park, gay couples made their own religious statements as they prepared to wed.
“The situation has never happened before (in San Diego County),” said spokeswoman Leslie Kirk. “(Smith) has been very accommodating up to this point.”
Smith, a Republican in a county full of social conservatives, largely brought the trouble onto himself. Last month, according to the San Diego Union-Tribune, the county clerk said he would respect the religious beliefs of his employees and not force anyone to perform gay weddings. Smith was then deluged with requests from his staff to keep them far away from kissing husbands. So much so, he sent out an email telling the offended workers they “would unfairly burden other employees and would directly compromise the services we provide to the public.” He also wrote they would need to be reassigned and couldn’t perform any weddings—straight or gay.
Reassignment wasn’t an inviting option for some of the employees—Smith wouldn’t release hard numbers. They quickly got over their religious objections and withdrew their requests. The remaining workers were still willing to go somewhere else. For them, Smith and county clerk lawyers found a legal loophole, citing California government code 12940. In a nutshell, it says an employer cannot “discriminate against a person” because of a “conflict between the person’s religious beliefs…and any employment requirement.”
The use of the code was another first for Smith, according to spokeswoman Leslie Kirk—and probably a statewide first in the continuing skirmishes over same sex marriage. Which means government code 12940 may soon become a rallying cry of sorts for anti-gay marriage supporters, particularly those who work in a county clerk’s office. The gays, according to two respected legal experts, can do nothing about it.
When I called the gay rights outfit Lambda Legal to see if Smith was citing the code correctly, attorney Jenny Pfizer replied with this email: “The county’s statement indicates that they are handling this just right. They are exploring the options to transfer employees to other positions with duties each employee can perform without difficulty given each one's religious beliefs, while ensuring that employees who serve the public are able to serve everyone equally as the law requires.”
USC Gould School of Law Professor David B. Cruz, an expert in anti-discrimination law, told me, “I see nothing improper in what San Diego has done.” Cruz also said the government “rarely contests the sincerity of one’s religious beliefs” in these types of situations.
Robin Tyler, though, wasn't so conservative in her legal analysis of the situation. Although not a lawyer, Tyler has plenty of experience with gay rights and the law as one of the leading plaintiffs in the California State Supreme Court case that legalized same sex marriage. She thought Smith's use of the code was bogus.
"What if someone's religious beliefs did not allow him to marry interracial couples?" Tyler wrote to me in an email. "The government would not support it. Therefore, why is it an acceptable use for same-sex couples? County clerks whose religious beliefs allow them to discriminate should not be working in government positions where they are supposed to serve all of the public."
So far, Los Angeles County has no one citing religion as a way to get out of work, according to county clerk spokeswoman Eileen Shea. Then again, acting LA County Clerk Dean Logan issued a strict “no-opting-out” policy for his employees, which is interesting since two county clerks obviously have very different interpretations of government code 12940. I then called the California State Attorney General’s Office—headed up by Jerry Brown—for a legal consultation, but no one returned my phone call.
In the end, this kind of controversy always boil down to the role of leadership, and possibly another major lawsuit to settle any lingering questions.
OUTTRO: Sadly, the 2008 European Cup, one of the world’s most exciting soccer (or football) tournaments, is coming to an end. After sitting through a few evening matches at the home office in West Hollywood, it struck me that a lot of hot guys were running around the pitch. Only pro tennis players and Olympic gymnasts (and maybe Olympic high divers) rival the sport for all-around good looks, and I watch everything from golf to curling to baseball. So while Towleroad.com understandably fawns over David Beckham, who seems to be more a model than anything else these days, here are just three “Queer Town” favorites:
Markus Rosenberg, a 25-year-old forward for Sweden. He struggled a bit in the Euro Cup, but Rosenberg's a top club player in Germany.
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Robin van Persie, a 25-year-old, left-footed forward for the Netherlands. A star player who kicked a beautiful goal against Romania.
Ibrahim Afellay, a 22-year-old midfielder for the Netherlands. A young player with major buzz and credited with an important assist during a Dutch victory.
Contact Patrick Range McDonald at email@example.com.