A number of my public clients have posed an interesting question about the new same-sex marriage law in Minnesota: What if an employee in a public licensing office refuses to provide a marriage license to a same-sex couple on the basis that same-sex marriage conflicts with the public employee’s religious beliefs?
Though this presents an interesting legal issue, the answer is fairly straightforward based on application of the Minnesota Human Rights Act, Minnesota Chapter 363A, as discussed below. Some background first:
New Law. On August 1, 2013, the definition of marriage in Minnesota will change. “Civil marriage,” will be defined as a “civil contract between two persons,” in Minn. Stat. § 517.01 (marriage is currently defined as “a civil contract between a man and a woman”). Aside from the employee benefits implications, which are largely governed by federal law issues that are currently before the United States Supreme Court, public employers that have marriage licensing divisions will be confronted with a variety of legal issues, and presumably increased demand, based on the change in law.
Public Accommodation. Entities that provide public services may not discriminate on the basis of sexual orientation, under the public accommodations section of the Minnesota Human Rights Act. Under Minn. Stat. § 363A.11, “Public Accommodations” “[i]t is an unfair discriminatory practice . . . to deny any person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation because of . . . sexual orientation [among other protected classes].” Minn. Stat. § 363A.11, subdiv. 1(a)(1). Violators are subject to civil suit and, in an oft overlooked portion of the statute, guilty of a misdemeanor under Minn. Stat. § 363A.30, subdiv. 4.
No Applicable Exemptions. Although there are specific listed exemptions for public accommodations in Minn. Stat. § 363A.24, primarily related to public restrooms, locker rooms and same-sex sports teams, there is, not surprisingly, no exemption for a public employee’s religious belief in the new law. Similarly, the religious association exemptions listed in Minn. Stat. § 363A.26 do not apply to public entities. Religious entities and their employees will not be required to provide goods or services in connection with a same-sex marriage if doing so would violate sincerely held religious beliefs. But again, public employers are not subject to these exemptions.
Discipline Permitted. Accordingly, it would be a violation of the law for a Minnesota public entity to deny a marriage license to a same-sex couple as of August 1, 2013. Public employees, of course, are acting on behalf of their public employer. Public employers may, therefore, require that their public employees provide marriage licenses to all applicants, including same sex applicants. Based on the change in law, public employers may (and should) discipline employees who refuse to provide such licenses as of August 1, 2013, even if such refusal is based on a professed religious belief.