Wednesday, September 30, 2015

Religious Freedom and Same Sex Marriage

Religious Freedom and Same Sex Marriage

(Before you read this post you may want to read the following:
-My argument against legal recognition of same-sex marriage
-My take on why the same-sex marriage issue is not parallel to interracial marriage
-My understanding of why the Obergefell decision was a really bad decision on the basis of the Constitution)

Rowan (pronounced like NOW-an) County Kentucky is just 45 minutes east of my hometown of Winchester. I once read that there are two Kentuckys – one west of Winchester, and one east of Winchester. That’s an oversimplification for sure, but the further east and south you go from where I was raised, the more you are leaving the rolling hills of horse country and entering the mountains of Appalachia. Rowan County is also home to Morehead State University (alma mater of Phil Simms for all of you NFL fans), so within this very rural and traditional environment there is also an active liberal community. And thus Rowan County is the perfect place for a conflict to emerge between deeply held traditional values and eagerly pursued progressive values.

That is exactly what happened when the Supreme Court issued its decision on same sex marriage. Shortly afterward, two men (one of them an employee of the university) went to the county clerk’s office to obtain a marriage license, and the county clerk, Kim Davis, refused to grant one on the basis of her religious beliefs. Soon, she decided to stop issuing marriage licenses to everyone in the county, lawsuits were filed, and suddenly a small county of less than thirty thousand people and its clerk were an international news story. 

To some people, Kim Davis is a hero, a new Rosa Parks, valiantly standing up against an unjust law on the basis of her conscience. To others she is a fanatic, a new George Wallace, a hate-filled bigot denying Americans their civil rights under the guise of “religious freedom.” Is she a martyr to be revered, a homophobe to be reviled, or just a religious nut who refuses to do her job?

This particular story has in turn raised many larger questions:
-What is the nature of religious freedom as it relates to employment? If a person has a religious scruple about something at work, should they just find another job?
-What is the proper balance in a civil society between the legalization of same sex marriage and the consciences of those who believe in marriage as it has been traditionally defined?
-Is there a way to accommodate civil officials like Kim Davis while at the same time honoring the legal standing of same sex marriage? 

I want to look at each of these issues.

A Good Kind of Exercise
From the inception of the Constitution the founders were intent on insuring the freedom of religion. And so the very first item in the Bill of Rights, the First Amendment, explicitly protects the free exercise of religion.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

“The free exercise thereof” protected by the Constitution does not simply include the freedom to go to synagogue, mosque, or church each week. It is much broader than that, and offers protection for religious beliefs and practices woven throughout the course of every day life – including maintaining those beliefs and practices on the job. For this reason, America has a rich history of providing accommodation to religious adherents of various faiths in the private sector and in the public sector.

For instance, some believers have religious scruples against taking up arms in combat, but are drafted into the armed services. Our nation has not always been kind to conscientious objectors, but several pacifists served with distinction as medics in World War II, even receiving the Medal of Honor. They were not compelled to take up arms and violate their beliefs. They were given an assignment that allowed them to serve their country and exercise their religion at the same time. 

This sort of accommodation takes place all the time on a much less dramatic scale. It is done for Orthodox Jewish believers who do not wish to be scheduled to work on the Sabbath, Jehovah’s Witnesses who do not wish to raise and lower the U.S. flag, Muslim truck drivers who do not wish to transport alcohol, and multiplied other cases. This is done not merely because of the First Amendment, but because it is the law of the land – the 1964 Civil Rights Act.

The section of the law that deals with religious discrimination, called Title VII, prohibits discrimination on the basis of religion, and defines “religion” as “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.” 

The key issue here is reasonable accommodation.  There are some circumstances in which such accommodation would be impossible. For example, let’s say that I had a job at one of the legal brothels out in Nevada. One day I decide to visit a church, and I hear the gospel and decide to become a Christian. Would it be reasonable to return to work the next day and demand that my boss give me a job that doesn't have any connection with prostitution since I am now a Christian? No. That is inherent in the nature of the place of employment. On the other hand, let’s say that I worked at Wendy’s. Would it be reasonable – in view of my newfound faith – to ask for my schedule to change so that I can go to worship on Sundays, and to offer to work other shifts to make this happen? Of course. As the EEOC website explains, “A reasonable religious accommodation is any adjustment to the work environment that will allow the employee to practice his religion. Flexible scheduling, voluntary shift substitutions or swaps, job reassignments, lateral transfers, and exceptions to dress or grooming rules are examples of accommodating an employee's religious beliefs.” 

So far what I have set forth shouldn’t be controversial. It is the law of the land, and it has been the common sense way people in civil society have worked to get along with each other here in America. However, I must say that as I read many Facebook status updates throughout the course of the Kim Davis controversy, one refrain that kept coming up was, “If your religious beliefs get in the way of doing your job, you should get another job” (or something similar). That mindset is a radical departure from American civil tradition, allowing for no effort at accommodation and compromise. Even worse, it stands in direct defiance of the law of the land, and represents a callous disregard for the explicitly protected right to free exercise of religion.

Have Your Cake and Edith Too
Now I would like to bring to bear the issue of religious liberty on the job as it relates to SSM. How can we balance the right to SSM established by the recent Supreme Court decision on the one hand with the religious liberty guaranteed by the Constitution and codified by laws such as the Civil Rights Act on the other?

Before the Kim Davis story, the paradigmatic example for this clash of interests was the Sweet Cakes by Melissa case in Oregon. Aaron and Melissa Klein owned and operated a bakery in Gresham, OR. A lesbian couple (Rachel and Laurel Bowman-Cryer) had met the Kleins and used their bakery while planning the wedding of Rachel’s mother a few year earlier. When they decided to get married, they came back to Sweet Cakes to order a wedding cake, and Aaron informed them that they did not make cakes for same-sex weddings.

Not long afterwards, the Kleins were notified that they were being investigated by the state Bureau of Labor and Industries for possible violation of Oregon’s Equality Act of 2007, which prohibits denying service to customers on account of sexual orientation. The BLI eventually found the Kleins guilty and ordered them to pay a fine of $135,000 to the couple for damages caused by emotional and mental suffering. The Kleins were forced to close their bakery, although they still operate out of their home.

Leaving aside certain specifics of the case, is a baker (or florist or photographer) bound by law to provide a wedding cake for a same-sex wedding even if such a ceremony is contrary to her religious convictions?  Is refusal to provide services for a same-sex wedding a form of anti-gay discrimination? 

By their own admission, the lesbian couple in question had done business with the Kleins before, so the refusal on the part of the Kleins to provide a cake for their wedding was not a denial of service to homosexuals as such. It was a refusal to provide a service in connection with a particular ceremony – in this case – a same-sex wedding. “What’s the difference?” you may ask.

Consider the previously mentioned legal brothel in Nevada. Suppose I was a baker (which if you know me, you know would be a horrible financial mistake!) living in Las Vegas, and a prostitute from one of those brothels came in to my bakery. Would I sell her a cupcake – even though I am a Christian? Absolutely. In fact, I would sell her as many as I could. Now let’s say the owner of the brothel decides to throw a big party to celebrate ten years in business, and that same prostitute drops by to ask me to decorate a cake for the anniversary celebration.  Could I do that as a Christian? I would have to respectfully decline, because now she has asked me to use my talents to provide a service in connection with an event that is celebrating something to which I am morally opposed on the basis of my faith. The same is true with how I would look at a same-sex wedding. 

Perhaps your religious beliefs lead you to think that prostitution is wrong but same-sex marriage is ok. Maybe your religious beliefs approve of both. Or maybe you don’t have any religious beliefs at all and you think they are both ok. That’s fine – that’s what freedom of religion is all about. What I want you to see is that there is a distinction between doing business with a person and providing services for an event. When a conservative minded Jewish, Muslim, or Christian baker/florist/photographer declines to provide services to a same-sex wedding on the basis of deeply held religious beliefs, that is not anti-gay discrimination. That is the free exercise of religion. And whether you are straight or gay, the very idea that civil governments at the state level are using coercive power to attempt to compel citizens to violate their religious beliefs should be alarming. 

The case of the Kleins is not unique. And it not limited to private citizens, either. Over the last several years as various states have voted to legalize SSM, many religious organizations have been adversely affected by this sort of imposition against religious liberty. For instance, Catholic Charities of Boston, San Francisco, the Archdiocese of Washington, and affiliates in Illinois, have all been forced to shut down adoption services, all because those agencies were committed (in keeping with Catholic teaching) to placing children in families where they would have a mother and a father who were married. 

And with the Supreme Court’s decision this summer, the prospects for religious liberty only look bleaker. In his majority opinion, Justice Kennedy tried to reassure those concerned with the decision for religious reasons: 

Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.

But of course, the First Amendment does not promise the right to “advocate,” but the right to “exercise.” Rather than soothing concerns regarding religious liberty, Kennedy’s ominous narrowing of the explicit language of the Constitution only intensified those concerns. As Justice Roberts responded, “Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.”

These sorts of conflicts – bakers vs. same-sex couples, or state governments vs. religious charities – are completely unnecessary. No Christian couple should be coerced to decorate a wedding cake to a same-sex wedding, just as no gay person should be denied a cupcake at a bakery just because they are gay. Religious charities should be permitted to place children for adoption in homes consistent with their articles of faith, just as non-religious adoption agencies should be permitted to function according to their values. There is no reason that tolerance and good will cannot prevail as we seek to work together in light of the Court’s ruling.

On the other hand, if this current trajectory continues, it is difficult not to see a grim future in which individual business owners, private schools and charities, and perhaps even churches, that maintain belief in traditional marriage on the basis of religious convictions will be deliberately targeted and subjected to coercive state power if they do not yield to the zeitgeistand compromise their convictions. In some instances, it may be fines levied at the state level, as in the case of the Kleins. In others, it may be the stripping away of tax-exempt status at the federal level. During the oral arguments before the Court, the Solicitor General conceded that private schools that opposed same-sex marriage might face this very penalty. “It’s certainly going to be an issue. I—I don’t deny that.”  And shortly after the Court’s decision, one gay-rights supporter called for the end of tax-exempt status for churches  that oppose same-sex marriage. 

I am not suggesting that I think the feds are about to come and lock me up because of what I preach. Political candidates may try to feed that frenzy (“Who will be next? Pastors?”), but I am not so alarmist. And quite frankly, many churches have in fact become nothing but big businesses, and it is hard for me to see how they can seriously claim “non-profit” status (may they should claim “non-prophet” status!). But here is the key point. If the federal government targets churches that do not agree with its policies and punishes them by removing their tax-exempt status, it will be demolishing the very “wall of separation” protecting churches from state interference the First Amendment was designed to create. And that should alarm all Americans.

And About That Kim Davis Person
What about the particular case that ignited most of the recent controversy? One reason that it has taken me so long to write this post is that I have tried to go back and read several articles from local news coverage of the case back home in Kentucky to get a better feel for how this situation unfolded, along with various national articles. Here’s what I have pieced together. [As an aside, I must say that the most helpful analysis of the entire case from a legal point of view has been that of Washington Post columnist (and UCLA Law Professor) Eugene Volokh.]

First, let’s look at the law regarding civil servants. While Title VII of the Civil Rights Act offers protection to employees from religious discrimination, it specifically exempts “any person elected to public office in any State or political subdivision of any State by the qualified voters thereof.” So Title VII does not provide an exemption to a county clerk like Kim Davis. This was news to me. However, like 19 other states, Kentucky has a “religious freedom act,” and that law does come into play in this case since it does not exempt elected officials. That law states, “The right to act or refuse to act in a manner motivated by a sincerely held religious belief may not be substantially burdened unless the government proves by clear and convincing evidence that it has a compelling governmental interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest.”

Second, from a common sense point of view, it is possible to find accommodative solutions to protect the religious sensitivities of civil magistrates in the execution of the law. Just because the law of the land now assures the right of SSM, this does not necessarily mean that every government official must be required to personally validate a SSM license. If one clerk has a conscientious objection, another official could easily be deputized to do the appropriate paperwork. In this way, the conscience of the particular civil servant could be protected, and the legal right of the couple receiving the certificate for SSM could also be protected. This very solution has been used in other settings for unelected government employees (such as pacifist postal workers who did not want to process selective service forms). And it could work for elected officials and their deputies as well. This summer, legislators in North Carolina passed a religious conscience law that made exactly this allowance. 

As a matter of fact, Kentucky’s governor, Steve Beshear, has shown a tremendous willingness in the past to accommodate public officials who have conscientious problems regarding SSM law. Just last year, when gay rights activists sued the Commonwealth of Kentucky because its state constitution included an amendment defining marriage as between a man and a woman, Kentucky’s own state attorney general, Jack Conway, refused to defend the state constitution as a matter of conscience, believing it to violate the US Constitution. Governor Beshear did not force him to resign, even though Conway refused to do his job. Instead, he hired an outside law firm, at the cost of $195,000, to defend the state. 

Now, on to the specifics of the Kim Davis matter. 

Back in January of this year, as newly elected county clerks took office in Kentucky, it was pretty clear that the Supreme Court was most likely going to rule in favor of SSM. In view of this likelihood, Davis began contacting state legislators, asking them to put together a bill to protect county clerks who would have religious objections to issuing licenses.  And once the Court’s decision came down, sixty county clerks in Kentucky (that’s half of the total counties in the state) petitioned the governor to call a special session of the legislature to provide a solution to exempt clerks who have religious objections. Nothing was done.

At this point, according to Davis’s testimony in court, she felt like she was caught in a dilemma. She could not issue SSM licenses with her name and title on the certificate in good conscience because of her religious beliefs. But, "I didn't want to discriminate against anyone.And so she decided that the only thing she could do is stop issuing marriage licenses altogether.

Through the course of the legal proceedings, Davis’s attorneys offered several solutions in a motion they filed with the court, such as:
  • Deputizing a neighboring county clerk (or some other person) to issue Kentucky marriage licenses in Rowan County.
  • Modifying the prescribed Kentucky marriage license form to remove the multiple references to Davis’ name
  • Distributing Kentucky marriage licenses at the state-level through an online or other state-wide licensing scheme, such as through the Department of Vital Statistics.
  • Deeming Davis “absent” for purposes of issuing SSM licenses, based upon her moral and religious inability to issue them, and allowing those licenses to be issued.

The reason I am going into such detail here is to make a point about Kim Davis’s motives. In many respects, Davis is not the ideal candidate to represent the public face of the cause of religious liberty. I saw several memes on Facebook that ridiculed her appearance, her rural background, her checkered marriage history. That’s the world we live in, and I get it. But it is grossly unfair to accuse this woman of hate. Whatever you may think of her appearance, her culture, and her morals, there is no evidence in any of her public statements or actions that she hates anyone. Yes, she has certain religious beliefs that lead her to believe that marriage is between a man and a woman, and that that is what the law should recognize. In other words, she believes exactly the same thing President Obama did until just three years ago. And I don’t recall anyone accusing the President of hate or homophobia. Further, the fact that she and her legal team have repeatedly offered solutions to find a way for same-sex couples to receive licenses (without her having to violate her conscience) shows that she is not trying to thwart gay marriage, or persecute homosexuals, or otherwise express hatred toward them.

“But she should just follow the law and do her job!” Of course. But the “law” not only includes SSM now, but for citizens of Kentucky, it also includes a protection of religious freedom that prevents a person from being burdened by the government to violate her conscience. And here is what Washington Post columnist Eugene Volokh concludes in his examination of that statute in light of her situation: 

So if Kim Davis does indeed go through the state courts, and ask for a modest exemption under the state RFRA — simply to allow her to issue marriage licenses (opposite-sex or same-sex) without her name on them — she might indeed prevail. Rightly or wrongly, under the logic of Title VII’s religious accommodation regime and the RFRA religious accommodation regime, she probably should prevail.

Conclusion (cue: "America the Beautiful")
Freedom does not have to be a zero sum game. There will always be extremists who seek out issues to drive wedges between people and cultivate power through division. It happens on both side of the political spectrum. But I deeply believe that people of good will can find a way to work together. My home state’s motto is, United We Stand – Divided We Fall. My prayer is for people of charitable spirit to stand united on the common ground of the rule of law and the right of conscience.


  1. Good thoughts, Shane, especially the conclusion.

  2. Very good. Very thorough. Fantastic job as always.

  3. Well stated, Shane! I appreciate all the time it took for you to put this information together!

  4. Well thought out and written. The lines are going to get very blurry indeed. Christianity (I use that in a broad, accommodative sense) is on a downward glide slope and traditional American values along with it. In 50 years, the majority in Europe will not be European nor Christian. America is not far behind and those who try to live by the Bible the tiniest minority. If we don't demand freedom OF religion now, there will be no freedom. All nations end, and most badly. Pray we are spared that, but prepare your children to stand alone!

  5. Thank you, Shane. A balanced analysis and conclusion. Appreciate your hard work and research.