I just learned something: You can't grant a county clerk a religious exception for deny service

[frenchdefense]

....for anything, really.

I was just, you know, looking at the situation because I'm curious that way.

I just tripped over this:

When you have been deprived of your civil rights by a government official, the relevant law is 42 USC 1983 (that's chapter 42 of the United States Code, Section 1983), typically called a "1983 action":

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable."

This makes the clerk PERSONALLY responsible for violating the law. The state isn't even involved. You get to sue the clerk, personally.

For a ton of money.

Since the state isn't involved, the state can't protect the clerk in the first place. So the Texas and Alabama telling the clerks they can refuse service to gay couples is just putting the clerks a risk of jail, fines, and damages.

Here's an article on this: (Sorry for the length, I can't like to it for forum rule reasons)

Okay, so that says "you can sue the clerk".

But, as they say on Survivor, "You want to know what you're playing for?"

Compensatory damages, punitive damages, and, in a rare departure to the normal rules of litigation in the US - attorney's fees - under 42 USC 1988:

"In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title... the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity such officer shall not be held liable for any costs, including attorney’s fees, unless such action was clearly in excess of such officer’s jurisdiction."

And, oh yeah, it's clearly in excess. Mind you a "reasonable attorney's fee" does not have to be the actual hours at the billable rate, but what would be "reasonable". If a top shelf NY firm would charge $10,000 to file, then that's "reasonable". The system is run by lawyers, and they can be downright unreasonable about what is a "reasonable attorney's fee".

That, incidentally, is how civil rights litigation organizations are funded, apart from donations.

So, you fill in the relevant names, dates and places in a form complaint, pay your $300 filing fee (also included in the prize package), along with the form motion for emergency injunctive relief, and serve it on the clerk.

The clerk then checks up the line and says, "Hey, is this real? Am I covered for this?" and finds out, in most instances, that the county will not pay their legal fees or cover their liability. The clerk then calls his or her friend the lawyer who says, "Issue the license or get out your checkbook."

Now, where it gets real fun is when the clerk decides he/she wants to be a hero. The clerk is going to lose on the motion for injunctive relief (ordering the clerk to issue the license) and is then going to have to decide how many days they want to spend locked up on contempt before (a) they issue the license, (b) they resign their post or (c) someone else in that county office is empowered to issue the license and they do so. Both (b) and (c) render holding the clerk on contempt to be moot, since the point of contempt is to gain compliance with the order, and not some "penalty" for non-compliance.

And this is what just played out in a county in Texas. While the Texas AG issued a much-hyped memo to clerks saying that they, personally, do not have to issue a license, the less-hyped portion of that memo says that someone ELSE in the office with the same power can issue it.

Karen Phillips, the Smith County (Texas) Clerk, just learned this the hard way:
http://www.kltv.com/story/29433340/same-sex-couple-drops-lawsuit-against-smith-co

Suit filed Friday. Clerk folded on Monday.

 

[Genersis]

....for anything, really.

I was just, you know, looking at the situation because I'm curious that way.

I just tripped over this:

When you have been deprived of your civil rights by a government official, the relevant law is 42 USC 1983 (that's chapter 42 of the United States Code, Section 1983), typically called a "1983 action":

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable."

This makes the clerk PERSONALLY responsible for violating the law. The state isn't even involved. You get to sue the clerk, personally.

For a ton of money.

Since the state isn't involved, the state can't protect the clerk in the first place. So the Texas and Alabama telling the clerks they can refuse service to gay couples is just putting the clerks a risk of jail, fines, and damages.

Here's an article on this: (Sorry for the length, I can't like to it for forum rule reasons)

Seems you're right, but also possibly a bit wrong.

I mean, if it can be proven that the statements of these governors/DA's ETC who said not to issue the licences were the reason some clerks didn't issue licences, it seems they'd also be liable; "Every person..." and all that. not just the clerk at the bottom but those responsible for the clerks actions(or inactions).
Sound about right?

 

[TheBarrd]

It's not been a week yet...give us time to get over the shock

 

[LivingWordUnity]

It's not been a week yet...give us time to get over the shock

So it just so happens that only a week after the ruling he discovers this...

 

[frenchdefense]

Seems you're right, but also possibly a bit wrong.

I mean, if it can be proven that the statements of these governors/DA's ETC who said not to issue the licences were the reason some clerks didn't issue licences, it seems they'd also be liable; "Every person..." and all that. not just the clerk at the bottom but those responsible for the clerks actions(or inactions).
Sound about right?

Well, maybe, but here's the thing: Once served the clerk has to defend themselves, this means a lawyer and the state in not gong to give them one which means the clerk is on their own and, if held in contempt, goes to jail.

Really, they are going to take the weight on this

 

[frenchdefense]

I wasn't looking for it before than - I was curious because of all the clerks suddenly deciding they could ignore this ruling.

and as it transpires, that's really the situation because, as of this post, everyone is either issuing the licenses, quitting or going to jail.

 

[Hetta]

I wasn't looking for it before than - I was curious because of all the clerks suddenly deciding they could ignore this ruling.

and as it transpires, that's really the situation because, as of this post, everyone is either issuing the licenses, quitting or going to jail.

Good to know. It will also be interesting to see how much their faith really does matter to them, because surely they'll resign, right? Hypocrites. I wonder how many licenses they sold to people on their second, third, fourth or tenth marriage.

 

[RKO]

Good to know. It will also be interesting to see how much their faith really does matter to them, because surely they'll resign, right? Hypocrites. I wonder how many licenses they sold to people on their second, third, fourth or tenth marriage.

A REPUBLICAN political consultant recently pointed out that a person can go to Vegas, be well over the legally drunk limit, pick up a hooker, get in a cab and marry her at a drive through window. completely legal and nobody says a word. But 2 committed people can not get married because of some language in the Old testament...

 

[Tallguy88]

Good to know. It will also be interesting to see how much their faith really does matter to them, because surely they'll resign, right? Hypocrites. I wonder how many licenses they sold to people on their second, third, fourth or tenth marriage.

Some have indicated they'll resign. And the ever tolerant gay rights people are shredding them as "bigots" for their faith, even though they are doing EXACTLY what they want them to do. Can't win for losing, it seems.

 

[Tallguy88]

Well, maybe, but here's the thing: Once served the clerk has to defend themselves, this means a lawyer and the state in not gong to give them one which means the clerk is on their own and, if held in contempt, goes to jail.

Really, they are going to take the weight on this

The clerk can turn around and sue the State and the AG for legal malpractice.

 

[Hetta]

Some have indicated they'll resign. And the ever tolerant gay rights people are shredding them as "bigots" for their faith, even though they are doing EXACTLY what they want them to do. Can't win for losing, it seems.

It's not at all what people want them to do. Like everyone else, they're just wanted to do their JOB. I don't know about anyone else, but I actually work for the state. I don't get to decide who I will or won't work with or 'serve'. I'm not actually in a position where I often deal with the public - not a front desk job - but I still do answer to the people of my state who pay my salary. I answer to THEM, not myself.

 

[Cute Tink]

Well, maybe, but here's the thing: Once served the clerk has to defend themselves, this means a lawyer and the state in not gong to give them one which means the clerk is on their own and, if held in contempt, goes to jail.

Really, they are going to take the weight on this

A government official sued under Section 1983 will probably have their agency sued as well under the concept of "failure to train" or something similar and will usually still get representation from the appropriate civil division of their legal department as long as they were acting within the course and scope of their employment and not engaged in blatant misconduct.

 

[Catherineanne]

A REPUBLICAN political consultant recently pointed out that a person can go to Vegas, be well over the legally drunk limit, pick up a hooker, get in a cab and marry her at a drive through window. completely legal and nobody says a word. But 2 committed people can not get married because of some language in the Old testament...

Ah yes; Biblical marriage.

A horse which bolted long ago, and nobody bothered to try to chase it.

 

[Tallguy88]

It's not at all what people want them to do. Like everyone else, they're just wanted to do their JOB. I don't know about anyone else, but I actually work for the state. I don't get to decide who I will or won't work with or 'serve'. I'm not actually in a position where I often deal with the public - not a front desk job - but I still do answer to the people of my state who pay my salary. I answer to THEM, not myself.

I also work for the state. I have to deal with the public everyday.

 

[Tallguy88]

/

 

[Hetta]

They may not be paying taxes now, but who is to say that they didn't in the past?

Well, again, not front line and again, you aren't denying them service because they're not people you think should have that service.

 

[Tallguy88]

They may not be paying taxes now, but who is to say that they didn't in the past?

Well, again, not front line and again, you aren't denying them service because they're not people you think should have that service.

If I worked in the County Clerk's office (a county job, not a state job in my state) and a same sex couple wanted a marriage license, I would simple be "unavailable" at that moment and refer them to my college who can help them. I've got all these files to copy and these checks to mail out...

 

[Hetta]

If I worked in the County Clerk's office (a county job, not a state job in my state) and a same sex couple wanted a marriage license, I would simple be "unavailable" at that moment and refer them to my college who can help them. I've got all these files to copy and these checks to mail out...

Would you do the same if they were divorcees on their second or third marriage?

 

[Tallguy88]

Would you do the same if they were divorcees on their second or third marriage?

No. I'm not even sure I would know if they were divorced or not.

Fortunately, it isn't something I have to deal with.

 

[Hetta]

No. I'm not even sure I would know if they were divorced or not.

Fortunately, it isn't something I have to deal with.

But theoretically ...