For the past two weeks we’ve been hammered with the media spectacle surrounding the Kim Davis case. Whether you agree, disagree or simply can’t care less, one thing is almost certain: her case will rewrite Title VII, EEOC guidelines. What is she asking for? Reasonable accommodation based on her religious beliefs.
Title VII of the Civil Rights Act of 1964 protects workers from employment discrimination based on their race, color, religion, sex, national origin or protected activity. Within its language, it requires an employer or an entity covered under this law to reasonably accommodate an employee’s religious beliefs or practices, unless doing so would cause more than a minimal burden on the operations of the employer’s business. And that means that an employer does not have to accommodate an employee’s religious beliefs or practices if doing so would cause undue hardship to the employer (i.e., de minimis cost).
To better illustrate, take for instance the case Protos v. Volkswagen of America, Inc. in 1986. The plaintiff Angeline Protos was a member of a church that prohibited work during the Sabbath. Failure to observe the Sabbath was, in fact, cause for excommunication. Volkswagen assigned Protos mandatory overtime work on a significant number of Saturdays. Protos’s minister submitted a note to Volkswagen explaining that no exceptions existed for the prohibition on labor during the Sabbath. However, Volkswagen couldn’t give a damn and continued to schedule Protos to work on Saturdays. Protos, ever faithful to her religion, missed each shift. Needless to say, she was fired. In her suit she claimed that Volkswagen could accommodate her religious practice without undue hardship. The district court agreed and that, therefore, Volkswagen violated Title VII. That’s pretty much a slam-dunk, no-brainer.
On the other hand, take the case Webb v. City of Philadelphia in 2009. The plaintiff Kimberlie Webb, a practicing Muslim, worked as a police officer since 1995. After she converted in 2003, she requested permission to wear a headscarf or hijab while in uniform and on duty. The police department denied Webb’s request, but she showed up to work wearing the scarf anyway. She was charged with insubordination after being repeatedly asked to remove the hijab and was suspended for 13 days. Webb sued, alleging her religious practice should have been accommodated. The police department said it would be unreasonable for it to accommodate the scarf because police officers need to present themselves to the public as neutral officers of the state. The court agreed, also observing that there were no exceptions made for other religions, symbols or garb. This one isn’t such a slam-dunk. I’ll leave that argument to you.
Here’s the Catch-22: Title VII excludes elected officials. However, Kentucky rules by a state statute called Religious Freedom Restoration Act (RFRA) 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.” Let that confuse us not. The 2011 case of Harrell v. Donahue stated that, “at least as to federal employees, RFRA provided no protections beyond those offered by Title VII.”
Let’s not lose focus on what the real issue is here. The epicenter of this debate isn’t Title VII or any labor law for that matter; it’s Davis’s right to discriminate based on her religious beliefs. In her statement issued September 1st, she claims:
To issue a marriage license which conflicts with God’s definition of marriage, with my name affixed to the certificate, would violate my conscience. It is not a light issue for me. It is a Heaven or Hell decision. For me it is a decision of obedience.
I have no animosity toward anyone and harbor no ill will. To me this has never been a gay or lesbian issue. It is about marriage and God’s Word.
This multiple divorcee, Christian county clerk devoutly believes that the LGBTTQ community shouldn’t marry, but there is nothing about signing a document for any couple that compels her to change that belief. After the couple leaves the courthouse, her belief is exactly the same. What’s more, not one person —that we know of— is demanding her to marry a person of the same sex; she’s married several of the opposite, by the way. No harm comes to the clerk, even though she morally disapprovals. She isn’t being asked to promote same-sex marriage or personally approve of it. She is merely being asked to sign a legal document and not obstruct with We The People‘s rights. She’s no Angeline Protos. She won’t be excommunicated. After all, the couple will get married, with or without the clerk’s approval, even if they have to drive to another part of town.
If she thinks she is promoting sin by signing a marriage license for a same-sex couple, then she also does when she provides one for a previously divorced couple, ironically. She may have forgotten, divorce and miscegenation are both damned by God as serious sins in the Bible, as it is likened to adultery. Unless she also refuses to marry all types of sinners, then she is guilty of hypocrisy, a sin condemned by none other than Jesus Christ himself. Has she refused to sign the license to a child abuser, sexual predator, domestic violence criminal or, worse, a convicted murderer? I’d like to know.
One may argue the LGBTTQ couple can hunt around until they find someone who’ll sign the damn paper — except for that they shouldn’t. Imagine if this were a Muslim county clerk who refused to marry a woman without a burka or, worse, a woman without her genitals mutilated? Imagine if this were a Ku Klux Klan member refusing to issue marriage licenses to Jews, brown and black people? This is clearly a clash of civil rights that are both constitutionally protected: the right to your religious belief, and your right to equal treatment before the law.
The refusal to serve the community is the actual discrimination. When elected to office, she swore an oath to uphold the laws of her state, county and country, not her church. Like in the case of Kimberlie Webb, she must be neutral and unbiased in serving her community. With the ruling of the U.S. Supreme Court, she needs to recognize her legal responsibilities. If this action goes against her religious beliefs, she must step down from her position, as she is unwilling to meet her obligations to the citizens of her jurisdiction.
Having said all this, the constant coverage of this issue has created a Title-VII religious martyr. What’s worse, a political campaign has risen around her, encouraging others to do the same: discriminate.
Rather than turning her into a community hero, triggering another crowd-funding campaign that makes yet another Bible-thumper into an overnight celebrity, let’s encourage her employer to revoke her right to issue marriage licenses, and reassign her to other duties. Even though Title VII doesn’t apply, accommodate her. Then she can resign if she wants to and she will not find her bigotry rewarded by spectacular donations joining the ranks of Memories Pizzeria, the Sweet Cakes Bakery and Stuzman the florist, each of whom were enriched by the deep pockets of the religious right. #NoMames.