James Kerian: The Debate Over Religious Freedom Needs Facts And Grownups

There a lot of interesting aspects to the controversy in Kentucky over the imprisonment of County Clerk Kim Davis for her refusal to sign her name to marriage licenses for same-sex couples.

There is the question of the relationship between the judicial branch of government and the other two branches.  There is the federalist question of exactly how much authority the federal judiciary has over state laws and state officials.  Aside from the continuation of the debates over whether or not the Supreme Court was right to order the states to begin issuing marriage licenses to same-sex couples there are also now debates over whether or not there is anything morally wrong with signing one’s name as a clerk to a same-sex marriage license, and whether or not Kim Davis should resign rather than seek an accommodation for her religious beliefs under the laws that guarantee religious freedom for employees.

The latter is the discussion that has received the most volume and is the most desperately in need of facts and grownups.  There is some chatter among the Christian right suggesting that Americans should ignore laws that they consider unjust.  Admittedly, this view was directly endorsed by both Thomas Jefferson and Martin Luther King Jr.  In the latter’s words:

“A just law is a man made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law… One has not only a legal but a moral responsibility to obey just laws. Conversely one has a moral responsibility to disobey unjust law.”

It’s a catchy line.  It can be used to stirring effect in a speech.  Ultimately, however, it offers an understanding of man’s relationship to the law that is incomplete at best.  There are both pragmatic and theological reasons to obey the law whenever one’s conscience will permit it even if you believe the law to be unjustly imposed (i.e. many of us believe that the amount we are taxed is unjust, but we pay it anyway).

While talk of ignoring Obergefell v. Hodges may be hyperbolic and unhelpful there is an even less constructive refrain rising from the left and many self-proclaimed libertarians that “she should just shut up and do her job” or “if she doesn’t want to perform her job requirements she has one option, quit.”  As Eugene Volokh writes for the Washington Post, however, that’s really not how religious freedom laws work in our country:

“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.”

Now perhaps the Democrats today disapprove of the Civil Rights Act.  They were certainly not big fans of it when it was passed.  But this is the law we have.  It was passed by Congress and signed by the President and now we have several decades of case law upholding it and guiding the determination of what constitutes a “modest cost.”  It’s rather ironic that people shouting for Kim Davis to “just follow the law” seem to want to ignore the way the law actually treats an individual’s right of conscience.

I don’t know if any of the accommodations that Kim Davis has proposed pass the “modest cost” test.  A credible argument is made by an expert in the field here but I won’t claim this is my area of expertise.  I do know that if you want the law to be followed then that is the question you should be pursuing.  For many, unfortunately, that seems to be less interesting than the opportunity to use imprisonment to stamp out dissent from the view that they call “tolerance.”