Wednesday, July 29, 2015

Governmental Official Wants to Avoid Doing Her Job Because … Gasp … Gays!

I’m not sure if you saw this news last week:

A Southern Indiana woman is suing after she was fired for refusing to process same-sex couples’ applications for marriage licenses because of her “sincerely held” religious beliefs.

Linda Summers, a former clerk’s office employee in Harrison County, filed the lawsuit last week against the county and County Clerk Sally Whitis in the U.S. District Court for the Southern District of Indiana in New Albany. The suit, which is filed in federal court, is not an invocation of the state’s new Religious Freedom Restoration Act or RFRA.

According to the complaint, Summers wrote and hand-delivered a letter to Whitis, telling her that processing licenses for gay couples is against her sincerely held religious beliefs against same-sex marriage, and asking that she not be required to do so.

Summers was fired on Dec. 9, shortly after she gave her letter to Whitis, who accused her of insubordination. She accused her former employer of unlawful employment practice and alleged that her termination is against the county policy of not discriminating against anyone based on “race, religion, color, sex, age, national origin, disability, military status, or any other classification under applicable law,” according to the complaint.

Whitis had sent a mass email to employees telling them they are required by state law to process applications for marriage licenses by same-sex couples even though it may be against their personal beliefs. The email was sent last October, a few days after the U.S. Supreme Court denied petitions to hear same-sex marriage in five states, including Indiana. The decision allowed lower-court rulings legalizing same-sex marriage to stay in place.

Let’s break this down, shall we?

The County Clerk (Whitis) sent an email to her employees telling them that they had to process same-sex marriage licenses because Indiana was required to recognize same-sex marriages. One of those employees (Summers) told Whitis, her boss, that processing same-sex marriage licenses was against her sincerely held religious belief and asked not to be required to do so. Whitis chose to fire Summers. Now, Summers claims that her firing was based on her religion.

Note that Summers was fired in December 2014, several months before Indiana adopted RFRA (which did not become effective until July 1, 2015).

To analyze this a bit further, ask yourself the following questions: Was Summers fired because she was Christian (or Muslim or Jewish or of any other faith)? Of course not. She was fired because she said she didn’t want to do perform a particular task that was a part of her job and which the law permits. If you think that Summers has a legitimate claim, then ask yourself this: What if her objection was not to same-sex marriage, but rather, to processing marriage licenses for interracial couples, interreligious couples, couples where one prospective spouse (or both) had previously been divorced, couples who planned to be married by the county judge instead of clergy, couples who didn’t intend to raise the children to be G-d-fearing Christians, or couples who intended to vote for Hillary Clinton? Is there any limit to what Summers should be allowed to decline to do on the basis of her religious belief? What if Summers’ job required her to process a piece of paper relating to a divorce, but her religious beliefs say that divorce is a sin. Should she be able to refuse to do that part of her job as well? What is the limit, if any, on the aspects of her job that Summers should be able to decline to perform citing religion?

Just for the sake of argument, let’s presume that that the Bible (or Jesus) really says that “gay marriage is a sin!”. Fine. So should the rule be that a governmental official can opt out of permitting someone else to do something that the governmental official believes to be a sin, even if the government official is not actually engaging in the sinful conduct directly? Think about it this way: The County Clerk told her employees that they had to allow others to do what the courts said is permitted; she did not tell her employees that they had to divorce their opposite sex spouses and have a gay wedding.

You know, there are lots of things which the Bible (or other holy books) designate as sins, yet we haven’t seen “true believers” trying to use their religious beliefs to intervene in other people’s lives to the degree that homosexuality has prompted such conduct. You might ask yourself why.

The increasing frequency with which we are seeing arguments like that raised by Summers should be very worrying to all of us, but especially to those of us who come from minority segments of the community. The notion that any of us could be burdened in our ability to do that which is legally permitted to us because a governmental official’s religious views run contrary either to our own or to the law, is fundamentally antithetical to our democratic system of government in which the rights of the minority are protected and in which there is a separation of church and state.

But more and more, we’re seeing (almost exclusively) evangelical Christians attempting to use their own religious beliefs as a sword, wielded against those scary gay people. It’s bad enough when we’re talking about a business wanting to discriminate against the LGBT community or an employer who refuses to hire a person on the basis of sexual orientation or gender identity or a landlord who won’t rent to a person because of who they love. But when that moves beyond the business community and into the offices of government, we have a major problem. A truly systemic problem. A problem based on intolerance and idiocy.

If you support Summers or even think that her argument is anything other than specious, then query further just which governmental officials should be able to refuse to do something on the basis of their own religious belief. What about a Catholic judge who says his religion teaches that divorce is a sin; should he be able to refuse to issue a divorce decree on the basis of his religion? What if the couple seeking a divorce isn’t Catholic? What about a zoning commissioner who has a religious objection to other religions. Should she be able to deny a zoning or building permit for a Mormon temple or Islamic mosque on the basis of her religious beliefs? Should the zoning commission be permitted to decline a zoning variance or building permit for a Red Lobster or Honeybaked Ham store because of the Biblical prohibition against shellfish and pork? What about a public school teacher who doesn’t want to have to teach a transgendered child whose parents allow that child to live (and dress) in accordance with that child’s gender identity? Or perhaps the teacher doesn’t want to teach children who worship a god other than the “true god” worshipped by the teacher? And I’d like to know whether the lawyer who filed this suit on behalf of Summers thinks that a member of the State Board of Law Examiners or the member of the Committee on Character and Fitness who conducts the ethical fitness examination of a prospective lawyer should be able to reject that prospective lawyer’s application to join the bar on the basis of the member’s religious beliefs (“What? You support the death penalty? Well, my religion says that the death penalty is bad, so you are obviously ethically unfit on the basis of my religious belief! Find another profession.”).

How do you think Summers would respond if the next time that she went to the Bureau of Motor Vehicles to renew her drivers license, the BMV clerk refused to process her license application because the clerk was a Muslim who cites a religious objection to women being in public without their husband or father and thus should not have drivers licenses (like in Saudi Arabia…)? I’m sure that Summers would be perfectly respectful of the religious views of that BMV clerk, right? Right? And if you think that this example is somehow different than Summers’ refusal, please explain precisely why. In detail. And without saying that Islam doesn’t count. Go on. I’ll be here.

When I was proofing this post before publishing it, I think I stumbled upon the best legal defense for the County Clerk to raise to Summers’ lawsuit: The County Clerk should simply state that her religious beliefs require her to be kind to everyone (“Do unto others…”) and therefore prohibit her from employing people who would use the power of the state to discriminate or treat others poorly. Or, perhaps, the County Clerk could simply say that her religious beliefs prohibit the employment of homophobic bigots. So which set of religious beliefs should prevail?

These sorts of examples can be continued ad infinitum and to the point of absurdity (though, lately, I’m beginning to wonder if there is any such thing as absurdity when it comes to the claims and arguments that some people will make in order to lord their own religious views over others).

Perhaps, instead of allowing governmental officials to opt out of acting in accordance with the parameters of their jobs to permit that which is legal, they should, instead, opt out of governmental employment. You don’t want to process same-sex marriage licenses? Fine. Move to a job that doesn’t require you to do so. But stop claiming that the First Amendment somehow gives you a right to intervene to prohibit others from doing what the law permits them to do.

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Monday, July 20, 2015

Local Newspaper Publishes Offensive Advertisement and Then Demonstrates Complete Failure to Understand the First Amendment

Each week, one of the publications that finds its way into my mailbox is The Current in Carmel. This publication is primarily a vehicle for local advertising with some “news”, mainly of the human interest variety (stories about local residents and businesses). Usually, I glance at The Current in Carmel for a good solid minute (OK, more like 30 seconds…) before it lands in the recycling bin. That being said, there have been occasions when something catches my eye or, more likely, I hear about an interesting article via social media. It’s rare, but it happens.

The July 8, 2015 issue was not one that caught my eye. It came (while I was on vacation, so it was delivered with a large batch of other items), I glanced (barely), and I tossed. That, it turns out, was unfortunate. A day or two after I’d thrown the issue away, I learned of a controversy surrounding that issue. Sadly, I wasn’t able to look at the issue for a first-hand view. So, part of what I will discuss is second-hand.

The July 8, 2015 issue of The Current in Carmel included a 12-page advertising supplement entitled “Non-Mormon Temple Visitors Guide”. This supplement was written and paid for by an organization called Tri-Grace Ministries (from Salt Lake City, Utah) and was, apparently, timed to relate to the upcoming open house of the new Mormon temple scheduled to open in early August (during which Tri-Grace Ministries will apparently, depending on your interpretation, be either holding information sessions about Mormonism or picketing the new temple). Now, this is important: I haven’t read this advertising supplement; what I know of it is based entirely on what I’ve read online. (If you have a copy of the supplement and have the ability to scan it and send it to me, I would really appreciate it; the online version of The Current in Carmel does not include the supplement.) Now, with that caveat in place, it is my understanding that the “Non-Mormon Temple Visitor’s Guide is extremely hostile to Mormons and the Mormon faith.


The purpose of this post isn’t to hash out whether the material in the advertising supplement was or was not hostile or accurate. Nor is the purpose of this post to discuss Mormons, the Mormon faith, or Tri-Grace Ministries. Rather, I want to talk about the decision to publish the advertising supplement and the response from the publishers of The Current in Carmel when criticized for publishing the supplement. For additional information about the situation, here is an article that appeared in The Indianapolis Star.

So before I offer my own thoughts, it’s probably worth seeing the editorial that The Current in Carmel published in response to criticism about publishing the advertisement:

Opinion: We do it daily, protect the First

The advertising supplement in last week’s paper, the one placed by Tri-Grace Ministries, created something of a minor firestorm in our community and in our offices. Callers and writers found it to be alternately insulting, offensive, questionable, in poor taste and even of descriptions not suited for inclusion in a family newspaper. We understand how polarizing religion can be, but we never anticipated the reaction to one ministry’s interpretation of another’s. To be sure, the advertising supplement, which Current accepted under the auspices of freedom of speech, is in no way, shape or form Current’s point of view; that belongs strictly to Tri-Grace Ministries. The First Amendment, which Current supports at every opportunity where others might not, solidly protects Tri-Grace Ministries’ right to free speech and its exercising of that right. The advertising supplement is Tri-Grace’s interpretation of another religion’s doctrine. Current has no agenda with respect to Tri-Grace’s writings, nor will it have any agenda with respect to any religion. We have had several discussions with worshippers and officials the last few days. There is incredible, laudable passion out there, and some of that is reflected in today’s paper and on our web sites and Facebook pages. Those published missives, too, are representative of our quest to promote and protect the First Amendment, something that never will wane on our watch. To those who called or wrote on the topic, we appreciate that you did so, and we value your candor.

(Emphasis added.)

So let’s unpack that explanation a bit. First, the editorial staff of The Current in Carmel “never anticipated the reaction to one ministry’s interpretation of another’s”. Really? They never thought that there would be negative reaction to one religion criticizing another religion in their newspaper? They didn’t anticipate negative reaction to publishing a supplement in which one faith refers to another faith as a “deception”? I’m sorry, but frankly that statement is really hard to believe. It makes me wonder whether they thought there would be no reaction because the target of the supplement was the Mormon faith. Would the editors have thought differently if the target had been Muslims, Jews, or Catholics?

Think about the broader question. When is it ever socially acceptable (not permissible, mind you, but acceptable in the kind of society that we want to pride ourselves on having) to provide one religious group with an opportunity to criticize another religious group on matters of faith and doctrine? Would it be acceptable for a newspaper to print accusations by a Christian group that Jews are guilty of deicide? Would it be acceptable for a newspaper to print accusations by a Protestant group that Catholics are not loyal Americans because they listen to the Pope? Would it be acceptable for a newspaper to print accusations by any religious group claiming that the belief system of another religious group is grounded in deceit and fraud (absent, I suppose, some provable element to the claim beyond mere disagreement on matters of belief)? Yet that is precisely what The Current in Carmel did when it printed the “Non-Mormon Temple Visitor’s Guide”.


It appears from the statement by the editors of The Current in Carmel that the reason the supplement was accepted was “the auspices of freedom of speech”. The editors claim that the “First Amendment … solidly protects Tri-Grace Ministries’ right to free speech and its exercising of that right” as if that was explanation for accepting and publishing the advertising supplement. Unfortunately, all this statement really does is make it abundantly clear that the editors of The Current in Carmel don’t have a clue as to what the First Amendment means or what it protects. And given that press freedoms are one of the core components of the First Amendment, I find it downright frightening that the editorial staff of a newspaper would be so totally clueless about the scope and meaning of the free speech protections of the First Amendment.

As I usually do when writing about these sorts of issues, allow me to post the actual text of the First Amendment:

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.

And, because we’re dealing with an Indiana newspaper, it may also be worth posting the freedom of speech provision from the Indiana Constitution’s Bill of Rights (Article 1, Section 9):

No law shall be passed, restraining the free interchange of thought and opinion, or restricting the right to speak, write, or print, freely, on any subject whatever: but for the abuse of that right, every person shall be responsible.

So where do either of those provisions obligate a newspaper to print an advertisement submitted by a religious organization? Yes, Tri-Grace Ministries has the right to express whatever opinion they want, whether honest or not, whether friendly or bigoted (their website refers to the Mormon faith as a cult). The First Amendment and Indiana’s Constitution both protect Tri-Grace Ministries (though note that notwithstanding either constitution, Tri-Grace Ministries could still be liable for defamation if the content of their speech is untrue). But the First Amendment’s free speech protections do not create a right to have your speech heard by others or to force your speech to be broadcasted or published by a private entity. Rather, the First Amendment (and the Indiana Constitution) protect speech from the government.

Thus, The Current in Carmel is absolutely correct when they state that the “First Amendment … solidly protects Tri-Grace Ministries’ right to free speech and its exercising of that right” but they are completely wrong in suggesting that protection has anything to do with The Current in Carmel generally or the decision to post the Tri-Grace Ministries advertising supplement in particular. Moreover, even if the free speech protections could be argued to have an impact on that decision, those protections would immediately run afoul of the First Amendment’s protections of the press. I mean, how would that work? The freedom of the press can’t be abridged but the press must allow anyone else to express an opinion, even one abhorrent to the press, within the pages of the press? Obviously not.

So The Current in Carmel argues that they accepted the supplement “under the auspices of freedom of speech” and then argues that it is their “quest to promote and protect the First Amendment”. Just asking here, but wouldn’t the best place to start that quest be, oh, I don’t know, with actually taking the time to learn and understand what the First Amendment means? Allow me to repeat something I wrote several years ago:

The First Amendment means that I can stand on a tree stump and shout my ideas to the world; but it does not mean that anybody has to come listen. The First Amendment means that I can write a book with crazy ideas; but it does not mean that anybody has to read it. And the First Amendment means that I can tell a newspaper reporter what I really think; but it doesn’t mean that he has to print it.

To return to the questions I asked above, if the KKK approaches The Current in Carmel with an advertising supplement that espouses racial superiority and is demeaning to blacks, if an evangelical Protestant group approaches The Current in Carmel with an advertising supplement all about the perfidy of Jews, if a Satanic cult approaches The Current in Carmel with an advertising supplement that seeks to demonstrate why Christianity is responsible for the world’s problems, and those groups claim that their advertising supplements are submitted for publication “under the auspices of freedom of speech”, will The Current in Carmel publish those supplements as a part of their “quest to promote and protect the First Amendment”. Or, if I were to send this blog to The Current in Carmel and ask that it be published and claimed that failure to do so would violate my freedom of speech (or press…), would The Current in Carmel publish this post?

I doubt it.

Newspapers in America are entitled to have a point of view. Sure we expect that the news they publish will be accurate, but the editorial staff is entitled to an opinion and is entitled to use the newspaper to further that opinion. Good newspapers will print letters to the editor or general op-ed essays that espouse a different opinion, but those newspapers exercise a degree of editorial control to keep their pages from becoming cesspools of hate or a platform from which bigotry and lies can be spread. That is all part of the responsibility of a newspaper.

Sadly, The Current in Carmel seems not to understand either what responsibilities or obligations are and are not incumbent upon it under the United States and Indiana constitutions. Given that The Current in Carmel is the local source for news and information, those failings make us all, individually and communally, poorer than we would be with a knowledgeable and responsible newspaper editorial staff.

Finally, I don’t want to end without at least noting one particularly odd phrase in The Current in Carmel’s editorial. In noting that they support the First Amendment at every opportunity, The Current in Carmel then says “where others might not”. Oh, really? I’m curious to know which “others” The Current in Carmel is referring to as not supporting the First Amendment. Seems like a sort of journalistic cheap shot against … well, I’m not sure who. Perhaps The Current in Carmel is lashing out against newspapers that wouldn’t “support” the First Amendment by accepting and printing a supplement like the “Non-Mormon Temple Visitors Guide”. Or perhaps The Current in Carmel is lashing out against those who criticize the decision to print the “Non-Mormon Temple Visitors Guide”. In any event, given the complete lack of understanding of the scope and meaning of the First Amendment, the suggestion that “others might not” support the First Amendment seems … silly. And sad.

This post is not the first time I’ve discussed the ways in which people fail to understand the core concepts associated the First Amendment’s protection of free speech. For similar discussions, please see the following posts:

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