The Law Doesn’t Say You Must Quit Your Job

A common response to the Kim Davis situation (see yesterday’s post) is to say, “If you can’t do your job, you need to quit.” Perhaps that’s the way it should be in some cases, but it’s important to know that’s not what the law demands, apparently not even for public officials.

Eugene Volokh explains “the American legal rule as it actually is, and as it has been for over 40 years (since the religious accommodation provisions were enacted in the 1972 amendments to Title VII)” in “When Does Your Religion Legally Excuse You from Doing Part of Your Job?”

Under Title VII of the federal Civil Rights Act, both public and private employers have a duty to exempt religious employees from generally applicable work rules, so long as this won’t create an “undue hardship,” meaning more than a modest cost, on the employer. If the employees can be accommodated in a way that would let the job still get done without much burden on the employer, coworkers, and customers — for instance by switching the employee’s assignments with another employee or by otherwise slightly changing the job duties — then the employer must accommodate them….

Thus, for instance, in all the cases I mentioned in the numbered list above, the religious objectors got an accommodation, whether in court or as a result of the employer’s settling a lawsuit brought by the EEOC. Likewise, the EEOC is currently litigating a case in which it claims that a trucking company must accommodate a Muslim employee’s religious objections to transporting alcohol, and the court has indeed concluded that the employer had a duty to accommodate such objections….

Volokh says Kentucky’s RFRA allows for religious exemptions for elected officials:

Title VII expressly excludes elected officials. But Kentucky, like about 20 other states, has a state Religious Freedom Restoration Act (RFRA) statute that requires government agencies to exempt religious objectors from generally applicable laws, unless denying the exemption is the least restrictive means of serving a compelling government interest. The federal government also has a RFRA, which may apply to federal court orders issued to state elected officials…. Nothing in them exempts accommodation claims by elected officials….

The terms of these RFRAs actually seem to offer greater protection for claimants — to deny an exemption, the government must show not just “undue hardship” but unavoidable material harm to a “compelling government interest.”

He then applies the law to Kim Davis as a public official, saying he thinks “she’d have a good case” under state law:

[I]t’s very likely that (1) the Kentucky RFRA, by its terms, would apply to religious exemption claims brought by elected officials, and (2) it would provide at least the protections offered to ordinary employees by the Title VII religious accommodation regime, and possibly more….

[B]esides her losing claim in the federal lawsuit, it seems to me that Davis has a much stronger claim under state law for a much more limited exemption. Davis’s objection, it appears…is not to issuing same-sex marriage licenses as such. Rather, she objects to issuing such licenses with her name on them, because she believes (rightly or wrongly) that having her name on them is an endorsement of same-sex marriage….

Now this would be a cheap accommodation that, it seems to me, a state could quite easily provide. It’s true that state law requires the County Clerk’s name on the marriage license and the marriage certificate. But the point of RFRAs, such as the Kentucky RFRA, is precisely to provide religious objectors with exemptions even from such generally applicable laws, so long as the exemptions don’t necessarily and materially undermine a compelling government interest.

Please read the rest of “When Does Your Religion Legally Excuse You from Doing Part of Your Job?” The existence of RFRAs doesn’t mean one must always litigate rather than quit (that decision requires wisdom and prudence), but it corrects a knee-jerk reaction I see happening out there that assumes one must always quit. That’s not how America works. The way we’ve worked this out in the past is by using the least restrictive means to achieve the government’s compelling interest (see here and here). If a reasonable accommodation is possible, it should be, and often is, given.

Comments

[Jud]

Apparently the court of public opinion is continuing to drive the legal system here, as Kim is being called the most bigoted person in America, and few judges want to give her due process. I don't know if you're aware of this at STR, but Go Fund Me also recently changed their terms and conditions to ensure Kim Davis can't get financial support for her legal fees through their site. I don't know about other crowd funding sources, but they may follow suit soon.

[Carolyn]

@Jud: I think we can and should expect persecution for upholding our Christian convictions. We shouldn't be surprised by the extraordinary steps the world will go through to make sure we are "punished" for going against the grain. We can rejoice in all of it because of Christ! A bit off-topic, perhaps, but...just saying.

[Jud]

Agree, Carolyn. And I'm thankful STR is around to help counsel us through the persecution!

[RonH]

If Kim Davis had assigned the same-sex licenses to a willing subordinate we would never have heard of her.

[Amy]

And if Kentucky had accommodated her as they have public officials in the past, we wouldn't have heard of her either.

As the post explains, Ron, her issue was having her name on the license, not issuing the license. As it also explains, "state law requires the County Clerk’s name on the marriage license and the marriage certificate," which means that having a subordinate issue the license wouldn't resolve the issue for her. I recommend reading Volokh's article.

[RonH]

And, as I explained under the other post, having her name on the license signifies something like...

This couple has complied with certain statutory prerequisites to marry in Kentucky.

... and nothing more.

Her job is not to endorse or deny endorsement.

I think she knows this.

[Brendt Wayne Waters]

"If the employees can be accommodated in a way that would let the job still get done without much burden on the employer, coworkers, and customers — for instance by switching the employee’s assignments with another employee or by otherwise slightly changing the job duties — then the employer must accommodate them"

And the employee has an obligation to accept said accommodation, not forbid others to accept them too.

Then again, the irony that we're discussing minutia of man's law when the whole issue is that Davis is claiming that her inaction is because God's law trumps man's law is left as an exercise for the reader.

[Brendt Wayne Waters]

RonH, I wish this site had a "like" button for your comment.

[RonH]

Volokh's or Davis's accommodation is to...

[m]odify the prescribed Kentucky marriage license form to remove the multiple references to Davis’ name

and substitute

a deputy clerk’s name, or just the notation “Rowan County Clerk,”

In other words, Davis wants to GET a power she does not now have - that of approving or disapproving of a particular couple's application.

[Mike]

Accommodating a Christian employee would only thwart the objective of all this hub-bub, which is to throw this person to the lions. Can't have any thwarting of intolerant blood-sport objectives in modern enlightened America, now can we?

Lions 1, Christians 0.

[dave]

Many times converts find that their line of work conflicts with their new conscience in Christ. It is common place to find more compatible work. I don't think Kim is justified in forcing her beliefs any more than the Bar Tender who refuses to serve alcohol, or the Christian Teacher who refuses to teach Evolution.

The peaceful way is non-resistance expected from us by Christ. Also, how do we evangelize gays when we try to corral them politically? Or any other group when we try to wield the power of the State against them?

[Steve Keusch]

"This couple has complied with certain statutory prerequisites to marry in Kentucky."
"Her job is not to endorse or deny endorsement."

Sounds suspiciously like "I signed the orders to kill the Jews at Riga because they met certain statutory prerequisites that qualified them to be shot. My job was not to endorse or deny endorsement."

[Sol]

"This couple has complied with certain statutory prerequisites to marry in Kentucky."

If that is the position then that is all the more reason Davis should not issue marriage licenses for gay couples - because the Kentucky Constitution, as legally voted by Kentucky citizens, only recognizes "marriage" as between one man and one woman.

THAT is Kentucky Law.

Now some will obviously point out the Supreme Court recently threw this out, but if we're all so bent on "the rule of law" being upheld then we as literate citizens have no choice but to recognize that according to the law SCOTUS is completely and utterly WRONG on the whole gay marriage issue in it's entirety. In fact, as citizens we should recognize that these previous summer rulings by SCOTUS have shown that what is guiding our judiciary process is more in line with vis et voluntas rather than any notion of "the rule of law." Indeed, these days "the law" only means what our oligarchs say they mean, not as they are actually written.

And when our judges in reality abandon the words on paper as they are written, we are not obeying the 'rule of law' but rather the 'power and will of individuals.'

That may be fine for liberal secularists whose worldview can not countence any power higher than the State (though as Gavin Newson showed they're also more than willing to abandon even that authority when it suits them), but for conservatives who actually care about the rule of law as it is written, and especially for Christians who have recognized there is indeed an Authority higher than the State and have been persecuted, imprisoned, and worse for thousands of years for merely having that belief that is something that can not be supported.

[Steve Keusch]

Sol

I think you have a pretty good point when you stated "And when our judges in reality abandon the words on paper as they are written, we are not obeying the 'rule of law' but rather the 'power and will of individuals." It shows how this country has failed to learn from the mistakes of the past. Hitler treated pieces of paper (i.e. agreements and so on) with this kind of contempt. To him, they were nothing but pieces of paper to be discarded when it suited his whims. This is just another example of lessons not learned from history. But then, education has been on a downward spiral in this country for some time. When you combine that with the inexperience of its youth...it looks kind of bleak...and dangerous.

[Still Waiting]

... and RonH, putting your name "RonH" on this post means we're still waiting for your response to Mo on the Planned Parenthood thread.
..........crickets......

[RonH]

Steve Keusch,

According to Volokh at least, Davis is willing to issue the marriage licenses and certificates. She just doesn't want her name on them.

Following your Godwinian analogy then, it's as if Davis is willing to issue 'the orders to kill the Jews at Riga' she just doesn't want her name on those orders.

Come on, Steve. She's not that bad.

[dave]

Is Kim Sinning while sitting in jail?

“Be ye not unequally yoked together with unbelievers: for what fellowship hath righteousness with unrighteousness? and what communion hath light with darkness? And what concord hath Christ with Belial? or what part hath he that believeth with an infidel?” (2 Corinthians 6:14–15)

First of all, the State by law is - unbelieving.

So if Kim agrees by oath to uphold State requirements, even before the SSM situation developed, she is violating Paul's command about Christians being yoked to unbelievers.

Again she is sinning by not repenting by quitting when she had the chance in the SSM flare-up.

She also sinned per Jesus'standards when she took the oath of office.

[Steve Keusch]

RonH,

"Following your Godwinian analogy then, it's as if Davis is willing to issue 'the orders to kill the Jews at Riga' she just doesn't want her name on those orders."

I don't consider that such a close analogy. It runs more along the lines that state executions are appropriate to sign, under certain circumstances, but they must meet something more than the criteria of being a Jew. The same is the case in signing off on a marriage license. You must meet greater criteria than just being a human being. Even you know that this is the case as some types of unions do not qualify for such a license. I might be wrong and you are a proponent of inbreeding...but that is not likely.

[RonH]

Steve Keusch,

You are aware that she is willing to process the licenses, aren't you?

[Steve Keusch]

RonH

You are aware of the fact that someone in the Third Reich was willing to sign off on executions of murderers, aren't you?

[Mo]

@ Still Waiting

"... and RonH, putting your name "RonH" on this post means we're still waiting for your response to Mo on the Planned Parenthood thread.

..........crickets......"

I just checked back, and nope, there's no response from him. He's just going to keep ignoring me. (I wish I had a dollar for every time I've been left hanging like that by someone!)

I don't know why this person is even allowed to keep posting here. He clearly loathes everything Christians stand for. He's not even here for honest discussion, just constant arguing, ignoring points put to him, etc.

He will continue to ignore me, even after making that vile comment directed specifically at me. And STILL, he's allowed to keep posting here.

That's just not right.

[Still Waiting]

hang in there Mo, you bring much to the discussion. likely elsewhere too....

RonH, the ball is in your court. Come on RonH, take a swing.......

[Mo]

@ Still Waiting

You are too kind.

[RonH]

RonH

You are aware of the fact that someone in the Third Reich was willing to sign off on executions of murderers, aren't you?

I'm more than willing to grant it. But I cannot see how that someone fits into your analogy. Please explain.

[Darth Dutch]

Mo,
You are correct that RonH isn't here for honest discussion, just to be a contrarian. I have engaged him in comments in the past but have found it is better to just ignore him - he isn't after honest discussion, just to disagree whatever is being said, no matter how innocuous.
Darth Dutch

[Steve Keusch]

RonH

" You are aware of the fact that someone in the Third Reich was willing to sign off on executions of murderers, aren't you?

I'm more than willing to grant it. But I cannot see how that someone fits into your analogy. Please explain."

Ok...I thought you might catch on on the fine distinction between signing off on the murder of Jews and the state execution of a genuine murderers. There is nothing wrong with signing off on the execution of a honest to goodness murderers, but there is certainly something wrong with signing off on the killing of innocent Jews. In comparison, there is nothing wrong with signing off on honest to goodness marriages, but there is something not quite right about signing off on something that is not a marriage. I am making a distinction between two different things that might on a superficial examination look identical. After all, the Nazis could easily simply say...and they often did especially in the East...that they were simply killing criminals worthy of the death penalty(though they were often Jews). Just because someone tries to blur the line that makes the distinction obvious, does not mean that he is justified in doing so or that it is an appropriate classification for justification of an aktion...to put it in German.

In both examples definitions are being played fast and loose with in order to justify either a desk murderer...or a desk violator God's creation order and indeed his own conscience.

[Steve Keusch]

Darth Dutch

I think that RonH has a point of view that he has a certain commitment to for his particular reasons. We all have that kind of thing. The real question is, if that point of view and the reasons for it can stand up when examined objectively and along with that, what the response is on the part of the individual that holds then when confronted with the fact that they do not stand up in the face of reason. That will ultimately decide if RonH can be honest with, not us, but himself.

[Mo]

@ Darth Dutch

"You are correct that RonH isn't here for honest discussion, just to be a contrarian. I have engaged him in comments in the past but have found it is better to just ignore him - he isn't after honest discussion, just to disagree whatever is being said, no matter how innocuous. "

He's still ignoring me. How unbelievably rude.