Kern County Non-Discriminates For A Discriminatory Reason

Tonight, at 5:01 p.m., county clerks throughout California will be under orders of the Supreme Court to issue marriage licenses to same-sex applicants and opposite-sex applicants alike. The clerks have no discretion but to obey the Court's order, in light of the Court's refusal to stay application of its holding in the Marriage Cases pending the outcome of the constitutional amendment initiative that will be on the ballot this November.

But one thing that county clerks do unquestionably have discretion to do, or not, is perform a solemnization ceremony concurrent with the issuance of the marriage license. Some county clerks provide that extra service, either as a courtesy or for a nominal fee, which gives an extra convenience for applicants for marriage licenses -- one-stop shopping, as it were.

Here's the interesting thing. The Clerk of Kern County used to provide solemnization ceremonies. She is rather obviously objecting to the idea of same-sex marriages by doing so -- reasoning (correctly) that if she or the employees working at her direction perform ceremonies for straight couples, they will have to also perform ceremonies for gay couples, which she refuses to do. Therefore, she will no longer perform ceremonies for anyone.

On the face of it, this is a non-discriminatory policy. No one gets ceremonies, so people are being treated equally. Here's the deeper question -- the reason for the change of policy is to make it that much more difficult for gay couples to get married, and/or to express distaste for having to issue marriage licenses that she would not issue unless she were under orders to do so. She has even asked the County Counsel for assurances that she would be defended in the event of a lawsuit, and when she didn't think she got a straight or fast enough answer, she went outside the county to ask a public-interest law firm to defend her (the Alliance Defense Fund, an arm of James Dobson's group, said that it would defend her).

That leaves us with an interesting conundrum. The former policy, if left in place, would require ceremonies to be performed for same-sex couples to avoid discrimination. The new and substantively different policy is, on its face, not discriminatory. But the motive for the change from one non-discriminatory policy to another non-discriminatory policy clearly is discriminatory.

When people do good things for bad reasons, we probably shouldn't punish them; we don't punish people for bad thoughts alone. But what about when people do neutral things for bad reasons?

Let's take an easier and more obvious example. Imagine A restaurant that formerly served "Whites Only" in Alabama in 1965. With the enactment of the Civil Rights Act of 1964, the owner is now forced to sell to everyone. Rather than suffering "Negroes" in his restaurant, the owner instead closes his doors completely and moves out of state. Has he violated the Civil Rights Act of 1964? No. He has engaged in no overt act of discrimination. It's a shame that he's so obstinately prejudiced that he would do that, but it's also within his rights to shut down his business if he wants to.

Now, this isn't exactly like the stubborn bigot closing his restaurant. This is a public official discharging public duties. While public officials have discretion about the way they perform discretion, they cannot abuse that discretion; they cannot exercise their discretion in an arbitrary and capricious manner. (Con law geeks will immediately recognize the import of the italicized terms of art in the previous sentence.) So the plaintiff's argument, were the clerk to be sued, would be that she has arbitrarily decided to exercise her discretion in a manner that targets gay people.

I think it's not a good argument. The new policy is not "arbitrary and capricious" as I understand that term -- it will be uniformly applied; there will be no case-by-case decision about who gets a ceremony and who doesn't. Many other county clerks have the exact same policy and have had the exact same policy for years.

Some county clerks are keeping their offices open late today. Some are conducting business as usual. This seems to be within the scope of discretion that clerks have as well. If a clerk decided to close the doors at 5:00 p.m. tonight and not issue any marriage licenses to anyone until 9:00 a.m. tomorrow morning, and the reason was to have a few more hours of discriminating aganst homosexuals, well, I suppose that would also be a neutral, non-discriminatory act done for a discriminatory reason -- and another thing that would either not be legally actionable at all, or not worth the fight. "You're suing me for closing my office at the exact same time I've closed it every day for years?" This is not a good case.

So while it kind of bites in this case, I think you've got to have an act of actual discrimination, not just a bad motive. Providing ceremonies at all is within the clerk's discretion to do or not do. And suing her to continue providing the ceremonies would mean a court would be interfering with the exercise of the clerk's discretion about how to perform her duties in a non-discriminatory fashion. There's no discrimination going on here; everyone is being treated equally and inconvenienced by the new policy equally. I also think same-sex marriage advocates would be best-advised to leave Kern County alone on this one. They would run up against prudential concerns and likely lose, thus handing opponents of their movement a victory that they otherwise would not have got. As it is, the clerk just looks like petty and spiteful bigot -- so shake your head in dismay that the voters pick people like that to hold office and move on to a better battlefield than this one.