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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