A deputy clerk in Harrison County, Indiana, lost her Title VII challenge to her discharge on December 15, when U.S. District Judge Richard L. Young ruled that she was not privileged by her religious beliefs to refuse to process a marriage license application from a same-sex couple. Incidentally, it was Judge Young who ruled in 2014 that Indiana’s ban on same-sex marriage was unconstitutional. Summers v. Whitis, 2016 WL 7242483, 2016 U.S. Dist. LEXIS 173222 (S.D. Indiana, Dec. 15, 2016).
Linda Summers worked as a deputy clerk in the Harrison County Clerk’s office, where her elected boss was County Clerk Sally Whitis. Part of Summers’ duties was to process marriage licenses. This consists of pulling up on the office computer the application that the couple would already have filled out on-line before coming to the Clerk’s Office, verifying that it was complete, collecting a fee, and then printing out the license and recording it in a book. She did not perform marriages or actually sign licenses.
The U.S. Court of Appeals for the 7th Circuit in Chicago affirmed Judge Young’s ruling striking down the Indiana ban on September 4, 2014. His injunction was “on hold” while the state sought Supreme Court review. On October 6, 2014, the Supreme Court denied the state’s petition, making the 7th Circuit’s ruling final. “On that same day,” wrote Judge Young, “the Office of the Indiana Attorney General issued a memorandum to all elected Clerks,” informing them that as soon as the 7th Circuit issued its final mandate to the state, Judge Young’s injunction would go into effect. “As soon as that mandate is issued – and it could be as early as today – county clerks will be prohibited from denying marriage licenses to same sex couples so long as all other marriage license requirements are met,” said the memorandum. “It would be advisable to start making necessary preparations to process marriage license applications and issue licenses accordingly.”
Whitis, who was on vacation when this happened, followed up on October 22, sending an email to all her employees, including Summers, informing them that “the Supreme Court has ordered Indiana to proceed with gay marriages. Therefore, it is our duty in the Clerk’s Office to process those applications. The process in Incite2 [the office software] has been modified to accommodate these filings. Even though it may be against your personal beliefs, we are required by state law to process their applications. We are only doing the paperwork and not performing their ceremony. I expect everyone to comply. Thanks.”
When a same-sex couple came to the office on December 8, 2014, to request their marriage license from Summers, she didn’t notice at first that both were women. Wrote Judge Young, “She went to her computer, opened the Incite system, and pulled up the couple’s application. She then realized that the individuals requesting the marriage license were both the same sex. Summers hesitated, unsure what to do. After a moment, she decided that she could not process the application and motioned for Whitis to come and assist.”
Summers testified: “I told her this is a same-sex marriage license, and I can’t do it. She said, ‘You are not marrying them; you’re just providing them with the license.’ And I said, ‘I don’t feel that way.’ And I said, ‘I can’t do it.’ And she says, you’re required to do it, you have to do it – some of that order. And I said, ‘I’m sorry. I can’t do it.’ And she – that’s when she jerked the paper out of my hand and she took it and sat down at her desk and took the couple.’” Whitis processed the license herself and told told Summers that such a refusal “could not happen again, because it was her job to do those.”
After reviewing the County Personnel Policies, which provide that insubordination “by refusing to perform assigned work or to comply with written or verbal instructions of supervisors” was ground for discharge, Whitis made the decision to discharge Summers and she consulted with the County Attorney. Whitis testified that “Summers’ religious beliefs did not play any part in the decision to terminate her.”
The next day, Summers placed a letter on Whitis’s desk asking that Whitis, as her employer, “accommodate my sincerely held religious belief by not requiring me to perform the task of processing marriage licenses for same sex couples.” Whitis read the letter when she got to work later that morning, and then gave Summers a letter notifying her that she was terminated “due to insubordination, as is defined in the Handbook on page 64.” Whitis testified that Summers was insubordinate because “she refused to do a task that she was asked to do.”
Summers testified that she identifies as a Christian and could not process marriage licenses for same-sex couples because it was “against God’s law” to do so, and God’s law is “above legal law.” She cited some passages from the Bible in support of her position. Whitis testified that she did not treat Summers any differently because of her religious beliefs and applied the same policies to her as to all other employees.
Judge Young noted that under Title VII of the Civil Rights Act of 1964 it is unlawful for an employer to discharge any individual because of their religion. According to the most recent Supreme Court precedent from 2015, he found that there are now two elements for a plaintiff to state a potential religious discrimination claim: (1) her religious belief or practice conflicted with an employment requirement, and (2) her need for an accommodation of that religious belief or practice was a motivating factor in the employer’s adverse employment decision.
Young found that Summers “cannot satisfy the first element of her claim.” He found that “the court must be able to conduct a limited, objective inquiry into the purported conflict. Here, the court finds no objective conflict between Summers’ duties as a deputy clerk and her religious opposition to same-sex marriage. When it came to marriage licenses, Summers’ job merely required her to process the licenses by entering data and handing out information. Specifically, she had to pull up the application, verify that certain information was correct, collect a statutory fee, print a form, and record the license in a book for public record. At bottom, she was simply tasked with certifying – on behalf of the state of Indiana, not on her own behalf – that the couple was qualified to marry under Indiana law. The duties were purely administrative.”
Young emphasized that Summers was not performing marriage ceremonies or personally signing licenses or certificates. “She was not required to attend ceremonies, say congratulations, offer a blessing, or pray with couples. Her employer did not make her express religious approval or condone any particular marriage. Summer remained free to practice her Christian faith and attend church services. She was even free to maintain her belief that marriage is a union between one man and one woman. Thus, she was not forced to ‘choose between religious convictions and job.’”
Young found support for his conclusion in the ruling by U.S. District Judge David Bunning against Rowan County, Kentucky, Clerk Kim Davis last year, and quoted from that decision. Although Davis had tried to rely upon the 1st Amendment rather than Title VII, this would not lead to any different result.
“To be clear,” wrote Young, “the court does not question the sincerity of Summers’ beliefs. She maintains that ‘it’s not God’s law to have [same-sex couples] marry,’ and has pointed to select verses from the Bible in support. That is fine; she has every right to believe that. However, that belief, no matter how sincerely espoused, does not objectively conflict with the purely administrative duty to process marriage licenses. Summers’ desire to avoid handling forms related to activities of which she personally disapproves is not protected by federal law. Title VII is not a license for employees to perform only those duties that meet their private approval.”
Young wrote that Summers’ conflict was with “federal law,” not with “an employment requirement.” “While Whitis may have instructed Summers to process same-sex marriage licenses,” he wrote, “that directive was merely an effort to comply with the Seventh Circuit’s mandate, which expressly forbids the state of Indiana from enforcing its same-sex marriage ban. In other words, the requirement that Summers process same-sex marriage licenses was one imposed by a federal court and merely implemented by Defendants.” Thus, it could not be the basis for an employment discrimination charge.
“In the end,” wrote Young, “Summers should have put her personal feelings aside and heeded the command of her employer.” While she was free to disagree with the federal courts, “that did not excuse her from complying” with their decisions, and so Whitis and the County were “within their rights” to terminate her employment.
Judge Young was appointed to the court by President Bill Clinton in 1997 and unanimously confirmed by the Senate. He was chief judge of the district when he struck down Indiana’s same-sex marriage ban in 2014, and just stepped down from the chief judge position this November.
Tags: clerks refusal to process same-sex marriage license, Harrison County Indiana, Linda Summers, religious accommodation, religious discrimination, Sally Shitis, same-sex marriage, Summers v. Whitis, Title VII Civil Rights Act of 1964, U.S. District Judge Richard Young