Memo to clerks: You can object to gay marriage

• The Alliance Defending Freedom memo tells Arizona court clerks they don%27t have to issue gay-marriage licenses
• The memo cites the federal law protections for people with religious%2C moral objections
• Some Arizona lawmakers say the state may have to revisit SB 1062 in light of legal gay marriage

The conservative group that handled the legal defense of Arizona's overturned gay-marriage ban is advising court clerks they don't have to issue marriage licenses to same-sex couples if the clerk has religious or moral objections.

Four days after same-sex couples were allowed to marry for the first time in Arizona, the Maricopa County Clerk of the Court's Office said one employee has already made such a request. And the issue may be headed for the legislative agenda.

The memo issued Wednesday by Alliance Defending Freedom echoes some provisions in this year's controversial Senate Bill 1062, which would have offered a legal defense for individuals and businesses facing discrimination lawsuits if they could have proved they acted upon a "sincerely held religious belief." Critics called it a defense of discrimination, triggering widespread protests that led to the bill's veto by Gov. Jan Brewer.

Kellie Fiedorek, a Washington D.C.-based attorney with the alliance, said the memo has nothing to do with SB 1062, but is simply a reminder of federal protections for government workers.

MONTINI: Discrimination's long shadow. SB 1062 all over again.

Still, some Arizona lawmakers who supported the legislation said the advent of same-sex marriage in Arizona could be reason to consider legislation similar to SB 1062.

If people need protection from being forced by government to do something that violates their consciences, a law may be appropriate, said Rep. Paul Boyer, R-Phoenix, who counts himself among the Legislature's social conservatives.

"SB 1062 is so pregnant with built-in assumptions, I'd like a different (bill) number," he said.

When Brewer vetoed SB 1062 eight months ago, she said she was unaware of any cases in Arizona where a business owner's religious liberty was violated. But things could be different now that gay marriage is legal in Arizona, Boyer said.

Earlier this week, House Speaker Pro Tem J.D. Mesnard, R-Chandler, told the Arizona Capitol Times that the issue of how to protect businesses from being forced to work with groups with whom they have a moral objection will need to be addressed.

The alliance's memo reminds court clerks that although their offices have to carry out the law, staffers who have religious objections can opt out. The duties can be handled by other staffers, Fiedorek said.

"(A)n employer must make reasonable adjustments to the work environment, or to the employee's job requirements, to ensure that the employee's ability to maintain his or her religious conscience remains unimpeded," the memo states.

The alliance also sent the memo to court clerks in Idaho, Nevada and North Carolina, where courts have recently overturned bans on gay marriage.

The issue is already stirring up concerns in other states: Today, the American Civil Liberties Union is hosting a teleconference to discuss cases where individuals and businesses (such as wedding chapels) are refusing to marry gay couples.

"While religious freedom is a fundamental American value and all persons are entitled to their religious beliefs, this right does not give anyone the right to harm or discriminate against other people," the ACLU said in announcing its briefing.

Phoenix attorney Dan Barr, who represented plaintiffs in one of the cases challenging Arizona's ban on gay marriage, called the memo a sore-loser tactic.

"It's stupid," Barr said. "These people have lost and now they're sending out this letter saying you don't have to stamp a form — how often is that going to happen?"

In Maricopa County, the Clerk's Office has already transferred one employee who raised a religious objection, said Chris Kelly, chief deputy clerk. Thanks to a coincidental job opening, that staffer was moved to a position with the same pay and same job level, she said.

The next conflict might not be so easy to address, she said.

"If it's an issue in the future, it has to be on a case-by-case basis because of staffing," Kelly said. Clerks issue marriage licenses and handle passport applications, and at times it might be difficult to separate those duties if staff is stretched thin.

She said the issue has prompted the Clerk's Office to think about how to handle conscience-based objections on a whole host of issues, such as the death penalty. On Wednesday, the office asked Attorney General Tom Horne for guidance.

Fiedorek said federal law allows court clerks to deputize others, such as town clerks or justices of the peace, to issue marriage licenses if everyone in a court clerk's office cited religious objections.

Although SB 1062 won easy passage earlier this year in the Legislature, it might be difficult to revisit the issue, given the storm of protest it ignited.

"How many times do you have to touch the same hot stove before you stop?" asked Sen. David Farnsworth, R-Mesa. He said he would leave it to "other leadership" in the Legislature to decide if it were necessary to revisit something similar to SB 1062 next year.

Rep. Kelly Townsend, R-Gilbert, said the looming budget deficit and other pressing matters facing the 2015 Legislature should take precedence on the agenda.

"I don't want to see a circus again," she said, referring to the protests that packed the statehouse grounds in February and landed on national network and cable shows. "We have to focus on the Ebola virus, if it comes here, and the budget."

Reach the reporter at maryjo.pitzl@arizonarepublic.com or at via Twitter @maryjpitzl.