Many look back at the day they were married as the happiest day of their life. However, one West Virginia couple have been forced to look back at the day they received their marriage license as a day of tears, embarrassment, and recrimination. Samantha Brookover and Amanda Abramovich, a lesbian couple that had been together since high school, had already been married in front of their family and friends back in September 2014. When they went to the Gilmer County courthouse to get a marriage license and make it official, they were greeted with lies and verbal abuse.
What Happened?
After the Supreme Court upheld the decision of a Virginia District Court ruling Virginia’s statutory and constitutional ban on same-sex marriage unconstitutional in 2014, the West Virginia Governor Ray Tomblin ordered state agencies to grant marriage licenses to same-sex couples. It was after this order that the happy couple went, for the first time, to seek a marriage license. This first time, they were greeted at the Gilmer County Clerk’s Office by Deputy Clerk Debbie Allen. After asking for their marriage license, Ms. Allen turned the couple away, lying to their face and telling them that they required a drivers license to get a marriage license. Brookover and Abramovich relied on Ms. Allen’s statements and left.
After this first failed attempt, it took some time before the couple sought a marriage license again. During their delay, the Supreme Court ruled in Obgerfell v. Hodges that same-sex marriage is a constitutional right across the nation. After this ruling, they again returned to the Gilmer County Clerk’s Office–this time with family in tow to celebrate the occasion. They again encountered Debbie Allen, but this time Ms. Allen was not content to simply turn them away on false pretenses. As she performed the paperwork to celebrate the love of a couple that had been together for years, Ms. Allen repeatedly insulted them. She called them names, called them an abomination to God, and finished by slamming the paperwork down and telling the couple that God would “deal” with them. When asked to stop, she told the couple, their family, and their 3-year-old niece that her statements were her religious right so long as she gave them the certificate. She also told them that nobody would perform their marriage in Gilmer County. The couple, in tears,allegedly signed the documents with shaking hands and left.
After the incident, Brookover’s mother called the County Clerk Jean Butcher to report the behavior of her subordinate Ms. Allen. Butcher told her that she knew what happened and supported Allen, other same-sex couples could expect the same or worse at the Gilmer County Clerk’s Office. Having had enough, the couple finally decided to sue.
In the assertions within the couple’s lawsuit they claim that they have uncovered evidence that the treatment they received was a premeditated policy of the Allen and Butcher. Allen had told other employees at the courthouse that she intended to humiliate and refuse a license to any same-sex couples which came in. Butcher had previously told her employees that she would vouch for any employee who committed such harassment or refused a marriage license to a same-sex couple.
The Couple’s Lawsuit
The suit, brought in April on the behalf of Abramovich and Brookover by Americans United for Separation of Church and State, alleges that this harassment unconstitutionally denies them–any any same-sex couple–equal access to the services of the Gilmer County Clerk’s Office. This is a claim made under the Equal Protection Clause of the Fourteenth Amendment.
The Equal Protection Clause forbids states from denying to any person equal protection of the laws. Sexual orientation has been a tricky subject when it comes to equal protection over the years. While discrimination based on race, national origin, or religion are held to highest levels of scrutiny before being approved, discrimination based on sexual orientation is held to the lowest level of scrutiny. However, the might to marry specifically has been ruled as a fundamental right of same-sex couples under the Equal Protection Clause. This means that, if the Gilmer County Clerk’s Office’s policy of harassment denies equal access to marriage to same-sex couples they have acted unconstitutionally.
While Allen and Butcher allege that such speech is their religious right, they fundamentally misunderstand their rights in this scenario. While they may individually have a First Amendment right to whatever hateful speech they wish, they do not act as an individual in their capacity as County Clerk and Deputy. They are representatives of the state and their actions and the policy
History Of Clerks Acting Out Against Same-Sex Couples
Ever since the Supreme Court ruled same-sex marriage a constitutional right in Obgerfell, the ruling has led to clerks refusing to do their duty. Perhaps the most famous instance of this is well publicized case of Kim Davis. In her case, and in many other states, laws have been passed either taking the names of clerks off marriage licenses or allowing clerks to recuse themselves from issuing same-sex marriage licenses.
For example, Texas has recently been considering S.B. 522 would allow any clerk to refuse to issue marriage licenses to same-sex couples if they have a personal objection and instead delegate the duty to another. Such laws are likely constitutional on their face, but could be unconstitutional in practice. As Gilmer County proves, if a group of clerks all refuse to issue marriage licenses to same-sex couples they could create unconstitutional roadblocks to marriage through their policies.
White House Emboldens Such Action
We recently discussed the new “religious freedom” executive order out of the White House. Specifically, we discussed that it accomplishes virtually nothing in practical terms. However, while essentially impotent as an action, what it does accomplish is emboldening the hate of people like Ms. Allen and Ms. Butcher. The order does not, could not and should not, provide protection to federal employees performing their duties based on a claim of religious objection. However, in the face of being called an abomination in front of their families, it’s doubtful that the legal effect of the order will make Samantha Brookover and Amanda Abramovich feel much better about what it implies about the future of their rights.