# Religious liberty of public employee vs. same-sex marriage rights. How to reconcile? **URL:** \ **Category:** Great Debates\ **Created:** [June 30, 2015, 4:35pm UTC](https://boards.straightdope.com/t/religious-liberty-of-public-employee-vs-same-sex-marriage-rights-how-to-reconcile/723876 "2015-06-30T16:35:24Z")\ **Posts on this page:** 20\ **Page:** 25
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [July 13, 2015, 2:14pm UTC](https://boards.straightdope.com/t/religious-liberty-of-public-employee-vs-same-sex-marriage-rights-how-to-reconcile/723876/481 "2015-07-13T14:14:46Z")
> [@Hershele\_Ostropoler](#): > > The very fact that clerks are considered interchangeable implies that it’s not the clerk’s personal endorsement that’s relevant here. If Clerk Fred refuses but Clerk Sylvia issuing a license is considered just as good, it clearly doesn’t hinge on what Fred or Sylvia actually think about the couple. That is why noone will get fired as long as the marriage licenses get issued regardless of the fact that one particular clerk hates the gay. I posted above, this insistence that people be fired for refusing to issue licenses despite the fact that other clerks in their offices are issuing licenses seems more like punishing religious bigots than recognizing rights. ---
**Author:** ![Hershele\_Ostropoler](https://avatars.discourse-cdn.com/v4/letter/h/e47c2d/32.png) [@Hershele\_Ostropoler](https://boards.straightdope.com/u/Hershele_Ostropoler)\ **Post date:** [July 13, 2015, 2:39pm UTC](https://boards.straightdope.com/t/religious-liberty-of-public-employee-vs-same-sex-marriage-rights-how-to-reconcile/723876/482 "2015-07-13T14:39:36Z")
I’m not seeing how the issuance of the license while a religious person happens to be the one behind the desk constitutes sin on the part of that person. But I’m also not clear why they think their god cares what the state of Alabama (or wherever) does, or why a supposedly omnipotent being is subject to a secularly established government. ---
**Author:** ![Aji\_de\_Gallina](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/aji_de_gallina/32/260_2.png) [@Aji\_de\_Gallina](https://boards.straightdope.com/u/Aji_de_Gallina)\ **Post date:** [July 13, 2015, 2:45pm UTC](https://boards.straightdope.com/t/religious-liberty-of-public-employee-vs-same-sex-marriage-rights-how-to-reconcile/723876/483 "2015-07-13T14:45:06Z")
> [@Hershele\_Ostropoler](#): > > Wait, who’s Anne named for? > > No one is proposing allowing the clerks to do that, unless you are and I missed a post. The _de facto_ positions are, give the licenses to couples who meet the requirements, or give the licenses to different-sex couples who meet the requirements. Even when phrased that way I really don’t see the latter as 99% of the former _vis-a-vis_ same-sex marriage. Ok, this is as far as this discussion can get. We disagree and cannot bridge the gap. Let’s end it here. > [@](#): > > I think that, if they’re following the law, they are not “imposing their views” even if the law happens to reflect those views. But prior to the _Obergefell_ ruling, I wouldn’t have supported a clerk who issued licenses to otherwise qualified same-sex couples in a state that did not provide for same-sex marriages, except to the extent that they were trying to create a test case; I certainly wouldn’t have said “it’s the right thing to do, so it doesn’t matter what the law says.” I, therefore, completeley misread what I thought you’d say. I stand corrected. ---
**Author:** ![wonky](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/wonky/32/393_2.png) [@wonky](https://boards.straightdope.com/u/wonky)\ **Post date:** [July 13, 2015, 3:10pm UTC](https://boards.straightdope.com/t/religious-liberty-of-public-employee-vs-same-sex-marriage-rights-how-to-reconcile/723876/484 "2015-07-13T15:10:12Z")
> [@Hershele\_Ostropoler](#): > > I think that, if they’re following the law, they are not “imposing their views” even if the law happens to reflect those views. But prior to the _Obergefell_ ruling, I wouldn’t have supported a clerk who issued licenses to otherwise qualified same-sex couples in a state that did not provide for same-sex marriages, except to the extent that they were trying to create a test case; I certainly wouldn’t have said “it’s the right thing to do, so it doesn’t matter what the law says.” I agree. And it wouldn’t be doing those couples any favors, either (aside from the test case scenario). ---
**Author:** ![Steve\_MB](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steve_mb/32/5339_2.png) [@Steve\_MB](https://boards.straightdope.com/u/Steve_MB)\ **Post date:** [July 13, 2015, 4:15pm UTC](https://boards.straightdope.com/t/religious-liberty-of-public-employee-vs-same-sex-marriage-rights-how-to-reconcile/723876/485 "2015-07-13T16:15:52Z")
> [@Damuri\_Ajashi](#): > > The flaw in that analogy is that you are saying your rights are superior to the rights of the religious bigots There’s a right to decide whether or not you’ll deign to do the job while still collecting a paycheck? News to me… 😕 ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [July 13, 2015, 8:16pm UTC](https://boards.straightdope.com/t/religious-liberty-of-public-employee-vs-same-sex-marriage-rights-how-to-reconcile/723876/486 "2015-07-13T20:16:13Z")
> [@Steve\_MB](#): > > There’s a right to decide whether or not you’ll deign to do the job while still collecting a paycheck? News to me… 😕 To the extent that a requirement of the job conflicts with religious belief, perhaps. Abercrombie & Fitch requires its employees to adhere to their “Look” policy. An applicant wished to hear a hijab for religious reasons - she refused to perform part of the job. A&F did not hire her on that basis. The case went to the Supreme Court and [in an 8-1 decision A&F lost](http://www.eeoc.gov/eeoc/newsroom/release/6-1-15.cfm). Courts look at whether the religious objection can be accommodated without undue hardship to the employer. If so, then the religious objection wins out. ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [July 13, 2015, 8:20pm UTC](https://boards.straightdope.com/t/religious-liberty-of-public-employee-vs-same-sex-marriage-rights-how-to-reconcile/723876/487 "2015-07-13T20:20:08Z")
> [@Iggy](#): > > Courts look at whether the religious objection can be accommodated without undue hardship to the employer. If so, then the religious objection wins out. You keep leaving out the question as to whether the religious practice in question discriminates against others. Have there been cases where the court has ruled that a person may discriminate on the job because the discrimination is of a religious nature? ---
**Author:** ![Voyager](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/voyager/32/133_2.png) [@Voyager](https://boards.straightdope.com/u/Voyager)\ **Post date:** [July 13, 2015, 9:13pm UTC](https://boards.straightdope.com/t/religious-liberty-of-public-employee-vs-same-sex-marriage-rights-how-to-reconcile/723876/488 "2015-07-13T21:13:01Z")
> [@Iggy](#): > > Courts look at whether the religious objection can be accommodated without undue hardship to the employer. If so, then the religious objection wins out. Where in the Bible does it say that someone working in a government capacity cannot do anything to enable a sin? The A&F case had them directly ordering her to go against an expressly stated Koranic restriction. If she refused to sell someone a bikini that would be a better analogy. How far would you want to go with this? Could a postal clerk refuse to accept invitations for a same sex wedding? Could a building inspector refuse to inspect a gay-owned business? Could a food inspector refuse to give an approval to a gay bar? ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [July 13, 2015, 10:50pm UTC](https://boards.straightdope.com/t/religious-liberty-of-public-employee-vs-same-sex-marriage-rights-how-to-reconcile/723876/489 "2015-07-13T22:50:04Z")
> [@Czarcasm](#): > > You keep leaving out the question as to whether the religious practice in question discriminates against others. Have there been cases where the court has ruled that a person may discriminate on the job because the discrimination is of a religious nature? I’ve dealt with this several times. The mere fact the employee is discriminating \*may \* not be sufficient. Each case is handled on its own merits. This will likely be a case of first impression for the courts. I would not be surprised at all to see lower courts split on the issue. I have cited a case in which the employer lost because they demoted an employee based upon his religiously based white supremacist beliefs. I’ll put this in context of a clerk issuing marriage licenses. Suppose an employer tells a clerk he must issue licenses to same sex couples. The clerk tells the employer he has a religiously based objection to doing so. The employer insists the clerk act against his right of free exercise of his religious beliefs and issue the marriage license anyway. The clerk refuses to issue a marriage license to a same sex couple and his supervisor suspends the clerk without pay pending termination proceedings. The clerk files a religious discrimination case. The legal question would arise as to whether there is there some alternative accommodation that is not an undue burden to the employer that would still meet the government’s goal of providing same sex couples marriage licenses in a non-discriminatory manner? If so (and we’ve discussed some options such as different lines suitably staffed or online issuance) and the employer refuses to provide the accommodation then the employer will lose the case. If no such accommodation can be made (perhaps a court says developing an online system is an undue burden on the employer or remodeling required to add another service window is too burdensome) then no accommodation need be granted. It would be up to the employee to issue such same sex licenses over his own religious objection or face disciplinary action, up to (presumably) termination) But if a court finds that an accommodation must be granted and wasn’t then the clerk would win his religious discrimination case. Essentially the court would be saying that the employer never should have put the clerk in that situation to being with. And what of the same sex couple who was denied a license or whose license was delayed? They could sue the office of the Clerk of Court regardless. Presumably the couple would win its case unless a court decides that whatever delay they experienced was too minimal to be actionable. Generally, an employer is liable for the actions of the employee so I doubt the clerk would be held personally liable. ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [July 13, 2015, 10:53pm UTC](https://boards.straightdope.com/t/religious-liberty-of-public-employee-vs-same-sex-marriage-rights-how-to-reconcile/723876/490 "2015-07-13T22:53:48Z")
> [@Voyager](#): > > Where in the Bible does it say that someone working in a government capacity cannot do anything to enable a sin? The A&F case had them directly ordering her to go against an expressly stated Koranic restriction. If she refused to sell someone a bikini that would be a better analogy. > > How far would you want to go with this? Could a postal clerk refuse to accept invitations for a same sex wedding? Could a building inspector refuse to inspect a gay-owned business? Could a food inspector refuse to give an approval to a gay bar? Doesn’t have to say it in the Bible, Koran, Torah, or any other scripture. The issues is whether it is a sincerely held religious belief, from wherever derived. Arguing that No True Christian/Muslim/Jew would believe \*that \* is a losing argument. Scalia wrote that the court was opening the way to each person being a law unto himself. Nevertheless the Congress passed the RFRA with overwhelming bipartisan support. Anyone care to argue Scalia was wrong given where we are today? ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [July 13, 2015, 11:37pm UTC](https://boards.straightdope.com/t/religious-liberty-of-public-employee-vs-same-sex-marriage-rights-how-to-reconcile/723876/491 "2015-07-13T23:37:18Z")
> [@Iggy](#): > > I’ve dealt with this several times. The mere fact the employee is discriminating \*may \* not be sufficient. Each case is handled on its own merits. This will likely be a case of first impression for the courts. I would not be surprised at all to see lower courts split on the issue. > > I have cited a case in which the employer lost because they demoted an employee based upon his religiously based white supremacist beliefs. You haven’t “dealt” with it at all-the white supremacist case involved discrimination against an employee for his religious beliefs. Let’s try this one more time: _Have there been cases where the court has ruled that a person may discriminate on the job because the discrimination is of a religious nature?_ Not discrimination _against_ a religious person because of their religious practice-discrimination _from_ a religious person towards a customer based on their religious beliefs. Got it? ---
**Author:** ![Voyager](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/voyager/32/133_2.png) [@Voyager](https://boards.straightdope.com/u/Voyager)\ **Post date:** [July 13, 2015, 11:46pm UTC](https://boards.straightdope.com/t/religious-liberty-of-public-employee-vs-same-sex-marriage-rights-how-to-reconcile/723876/492 "2015-07-13T23:46:47Z")
> [@Iggy](#): > > Doesn’t have to say it in the Bible, Koran, Torah, or any other scripture. The issues is whether it is a sincerely held religious belief, from wherever derived. Arguing that No True Christian/Muslim/Jew would believe \*that \* is a losing argument. I’d never argue that no true Christian or whatever wouldn’t believe something hateful and stupid. So, you agree that the postal clerk should be able to refuse the invitations? Even religious freedom has boundaries when others are affected. (Such as children being treated.) And I think it is okay to check if the religious beliefs are truly sincerely held and not just a cover for something else. ---
**Author:** ![Miller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/miller/32/481_2.png) [@Miller](https://boards.straightdope.com/u/Miller)\ **Post date:** [July 13, 2015, 11:55pm UTC](https://boards.straightdope.com/t/religious-liberty-of-public-employee-vs-same-sex-marriage-rights-how-to-reconcile/723876/493 "2015-07-13T23:55:23Z")
> [@Iggy](#): > > I’ve dealt with this several times. The mere fact the employee is discriminating \*may \* not be sufficient. Each case is handled on its own merits. This will likely be a case of first impression for the courts. I would not be surprised at all to see lower courts split on the issue. > > I have cited a case in which the employer lost because they demoted an employee based upon his religiously based white supremacist beliefs. This white supremacist case you’ve mentioned a few times. Was the guy demoted because he was caught acting in a discriminatory manner, and successfully sued on the grounds that he was acting in accord with his religion? Or was he demoted purely on the basis of his membership in the church, and successfully sued because his employer could not demonstrate that he was putting his racist beliefs into action at his job? Because if it’s the second situation, I don’t think that has any relevance to this discussion. ---
**Author:** ![Robert163](https://avatars.discourse-cdn.com/v4/letter/r/4af34b/32.png) [@Robert163](https://boards.straightdope.com/u/Robert163)\ **Post date:** [July 14, 2015, 12:02am UTC](https://boards.straightdope.com/t/religious-liberty-of-public-employee-vs-same-sex-marriage-rights-how-to-reconcile/723876/494 "2015-07-14T00:02:59Z")
> [@Iggy](#): > > Doesn’t have to say it in the Bible, Koran, Torah, or any other scripture. The issues is whether it is a sincerely held religious belief, from wherever derived. Arguing that No True Christian/Muslim/Jew would believe \*that \* is a losing argument. > Scalia wrote that the court was opening the way to each person being a law unto himself. Nevertheless the Congress passed the RFRA with overwhelming bipartisan support. Anyone care to argue Scalia was wrong given where we are today? Well, we are supposed (USA) to live in country with separation of church and state. So really your comments shouldn’t matter. Religious thought or religious texts should have no bearing on legal matters. ---
**Author:** ![Robert163](https://avatars.discourse-cdn.com/v4/letter/r/4af34b/32.png) [@Robert163](https://boards.straightdope.com/u/Robert163)\ **Post date:** [July 14, 2015, 12:04am UTC](https://boards.straightdope.com/t/religious-liberty-of-public-employee-vs-same-sex-marriage-rights-how-to-reconcile/723876/495 "2015-07-14T00:04:45Z")
> [@Voyager](#): > > I’d never argue that no true Christian or whatever wouldn’t believe something hateful and stupid. > > So, you agree that the postal clerk should be able to refuse the invitations? > Even religious freedom has boundaries when others are affected. (Such as children being treated.) And I think it is okay to check if the religious beliefs are truly sincerely held and not just a cover for something else. it could be the most sincerely held belief possible, but, if it is a legal matter in the USA, religion is supposed to have no impact on legal matters. why are you mentioning sincerity of (religious) belief? ---
**Author:** ![wonky](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/wonky/32/393_2.png) [@wonky](https://boards.straightdope.com/u/wonky)\ **Post date:** [July 14, 2015, 1:51am UTC](https://boards.straightdope.com/t/religious-liberty-of-public-employee-vs-same-sex-marriage-rights-how-to-reconcile/723876/496 "2015-07-14T01:51:06Z")
One judge has decided that he will perform SSM, but he has to try to [make the gays jump through hoops first](http://www.mediaite.com/online/tx-judge-opposed-to-scotus-gay-ruling-will-marry-gay-couples-with-one-caveat/). ---
**Author:** ![Trinopus](https://avatars.discourse-cdn.com/v4/letter/t/2bfe46/32.png) [@Trinopus](https://boards.straightdope.com/u/Trinopus)\ **Post date:** [July 14, 2015, 2:43am UTC](https://boards.straightdope.com/t/religious-liberty-of-public-employee-vs-same-sex-marriage-rights-how-to-reconcile/723876/497 "2015-07-14T02:43:19Z")
Cute… Couples have to sign a paper acknowledging that the judge doesn’t like them very much. I’d certainly like to add a few free-form sentences at the bottom of that document… ---
**Author:** ![Ibn\_Warraq](https://avatars.discourse-cdn.com/v4/letter/i/e19b73/32.png) [@Ibn\_Warraq](https://boards.straightdope.com/u/Ibn_Warraq)\ **Post date:** [July 14, 2015, 4:28am UTC](https://boards.straightdope.com/t/religious-liberty-of-public-employee-vs-same-sex-marriage-rights-how-to-reconcile/723876/498 "2015-07-14T04:28:29Z")
> [@Robert163](#): > > Religious thought or religious texts should have no bearing on legal matters. Really, suggest to some business owners that they forbid Jewish employees from wearing Yarmulkas and see what happens to them. ---
**Author:** ![Ibn\_Warraq](https://avatars.discourse-cdn.com/v4/letter/i/e19b73/32.png) [@Ibn\_Warraq](https://boards.straightdope.com/u/Ibn_Warraq)\ **Post date:** [July 14, 2015, 4:30am UTC](https://boards.straightdope.com/t/religious-liberty-of-public-employee-vs-same-sex-marriage-rights-how-to-reconcile/723876/499 "2015-07-14T04:30:28Z")
> [@Robert163](#): > > it could be the most sincerely held belief possible, but, if it is a legal matter in the USA, religion is supposed to have no impact on legal matters. why are you mentioning sincerity of (religious) belief? Because religious beliefs do have an impact on legal matters as anyone familiar with American history and Law will tell you. Who has told you differently? ---
**Author:** ![Voyager](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/voyager/32/133_2.png) [@Voyager](https://boards.straightdope.com/u/Voyager)\ **Post date:** [July 14, 2015, 5:13am UTC](https://boards.straightdope.com/t/religious-liberty-of-public-employee-vs-same-sex-marriage-rights-how-to-reconcile/723876/500 "2015-07-14T05:13:49Z")
> [@Robert163](#): > > it could be the most sincerely held belief possible, but, if it is a legal matter in the USA, religion is supposed to have no impact on legal matters. why are you mentioning sincerity of (religious) belief? Because **Iggy** did. But when I was of draft age, at least, if you wanted to apply for conscientious objector status based on religion, you needed to show sincere belief, not that you found God five minutes after your draft notice arrived. And of course it has an impact on legal matters - how much is what is at issue. [Previous page](https://boards.straightdope.com/t/religious-liberty-of-public-employee-vs-same-sex-marriage-rights-how-to-reconcile/723876.md?page=24) [Next page](https://boards.straightdope.com/t/religious-liberty-of-public-employee-vs-same-sex-marriage-rights-how-to-reconcile/723876.md?page=26)