Thanks for responding. I assure you that I ask these questions in all sincerity and good faith. It does seem that a quantum level of support is required for the SC to be motivated to act.
As a response to the questions I posed, how promising would it be to say that disallowing gay marriage requires a higher level of scrutiny than disallowing consanguinous or polyamorous marriages? (Strict vs rational basis) It seems to me that disallowing gay marriage would not pass the rational basis test (as opposed to consanguinous or polyamorous marriages) but it would be a nice argumentative bulwark if disallowing gay marriages would have to pass a higher level of scrutiny than disallowing consanguinous or polyamorous marriages.
It would be very promising. But for reasons nobody understands, Kennedy flatly refuses to do that, and as the swing vote on LGBT cases he basically gets to choose.
Courts have recognized that certain delays are de minimis. In employment time-keeping cases up to about ten minutes per day of off the clock activities (setting alarm, turning key in lock, walking other employees to their cars) were considered de minimis. An employee who attempted to sue for unpaid wages for such time was out of luck. But where such time could be accurately gauged the employer had to pay.
In one such case, Anderson v. Mt. Clemens Pottery Co., the SCOTUS majority opinion noted “Split-second absurdities are not justified by the actualities of working conditions or by the policy of the Fair Labor Standards Act.” And they were talking about several minutes per day of allegedly uncompensated work.
So if such logic holds for court clerks refusing marriage licenses and stepping aside while another clerk handles the transaction then delays for a rare, perhaps once-in-a-lifetime transaction that are delayed just a few minutes may not be compensable.
And the clerk need not say anything more than, “Just a moment while I get Jim to help you.” Or hang signs over two services windows noting marriage, hunting, and yard sale licenses (or whatever) are serviced at window#1 and property tax payments and whatever other tasks are served at window #2. And assign an employee who objects to issuing SSM licenses to duties at window#2. No explanation to the public is needed.
I don’t think anyone is likely to have a problem with that since, as you mention, there is no explanation. However, the minute one of these people feels compelled to publicly say they won’t perform their job duties, THEY make this a public issue.
In addition, what about places that only have one clerk on duty at a time for whatever reason?
The employee who wants to raise a religious objection must tell the employer that they have a religiously based objection, even if it might seem obvious. The clerk cannot simply walk away and say nothing to anyone the first time he is confronted with being asked to do something to which he religiously objects. No fair suing the employer who dismisses someone for failing to do some aspect of his job and only in court finding out it was a religious objection that might could be accommodated. (Oh, that yarmulke was because your Jewish! That’s why you were wearing a hat in violation of company policy. Might seem obvious, but must be stated as a religious objection to the employer.)
So to a certain extent, they MUST speak up if they want to object. That’s the way the system works.
But that clerk doesn’t have to tell the customer why they are being referred to another clerk. Might be that clerk #1 is new on the job and hasn’t been trained on marriage licenses yet. Might be a religious objection. Work might be assigned on a rotating basis and it is clerk #2’s turn to do all the marriage licenses today.
Employers only have to accommodate a religious objection if the accommodation has minimal impact on the employer’s operations. If there is only one employee then an accommodation may not be granted if there is no less intrusive way for the government to accomplish its goals.
But, as has been proposed in Kentucky, a state government moved its marriage license applications and processing to an online platform then that single employee in the small county *might * (to be determined by a further court case, probably) be able to refer the applicants for a marriage license for a same-sex couple to the website and not otherwise process their application.
Actually my yarmulke example may no longer be valid, especially in light of Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores. The SCOTUS basically ruled that an applicant’s wearing of a hijab was sufficient notice to the employer that a religious accommodation might be needed and the employer should have asked. And that the employer’s refusal to hire the applicant based upon a desire not to provide a religious accommodation was sufficient to support her action.
I don’t really see much of anything there to object to but I think you missed my point. I wouldn’t necessarily have a problem with someone who has a religious objection to certain duties expressing that to their employer and then having the employer find a way to accommodate that objection provided it doesn’t impact the ability of the government office to provide the service, such as marriage certificates, to everyone who wants one and qualifies under the law.
But that isn’t what has been going on. The folks with the religious objections have felt compelled to make public statements to the media or to deny services to members of the public who they don’t like for religious reasons. THAT is the problem. I could care less about private conversations with the employer.
But tough cheese - the franchise just has to put a line on the application asking whether the applicant has any reservations about serving certain segments of the customer base. If they do, then they can go be an evangelist somewhere, because they’re not going to be hired by the franchise.
This could of course generate a lawsuit. The ACLU won’t take it (they could have litigated this kind of thing already if they wanted to), but I think there will be clear standing for religious discrimination.
So would this employee process opposite sex couples in the normal way, but when a same sex couple step up, refer them to the website and ask them to step aside for the next normal couple?
I’m sorry, but if you can’t see why someone might find that “separate and not even remotely equal” approach offensive, we’ve got a big problem here.
The problem isn’t the delay, it’s the discrimination. Is the discrimination de minimis?
So, the person who JUST processed a marriage license 5 minutes ago, and who called me up to their window to help me, decided they can’t help me when they found out I was processing a marriage license.
Your employer needs to accommodate you, not your customer. The gay couple who is coming in to process a legal document doesn’t need to accommodate the clerk’s religious belief. They don’t need to apologize for their existence, justify their relationship, or accept discrimination while others get served.
The Kentucky clerk pushing for online marriage licenses is quoted as saying “My solution would be, to what everyone else has called the law of the land, is have an online issuance for marriage licenses so that it takes it out of the hands of the individual.” Cite
I’ll leave it to the individual Doper to decide if that proposal would mean moving ALL marriage license to an online platform in the state of Kentucky or just offering online as an option while still continuing to issue marriage licenses over the counter at a clerk of courts office. My read is " taking it out of the hands of the individual" would require moving all marriage license applications to an online only system. Devil may be in the details.
The clerk in question asked the governor to call a special session of the legislature to address the issue, and his call was supported by some legislators. So far no special session is in the offing.
The governor of Kentucky did meet with this clerk and reportedly told him to issue licenses to same-sex couples. This may portend a legal confrontation if the clerk does not back down from his stated religious objection as it has in my (I-am-not-a-lawyer) eyes the basic outline of a test case.
As to an objection about online access… even if it went to an online-only issuance, that would still leave it much more accessible than the current option which requires going to one specific building in the county to conduct the business transaction in person during limited office hours. I view the " not everyone has a computer at home" argument to be rather poor. When Oregon went to a vote-by-mail only election system there wasn’t a great cry from those who wanted to go and stand in a line. Access had been greatly expanded.
While I understand that many Dopers are all saying some variation of " But what about the couple asking for the marriage license?" that is not the legal issue in whether an accommodation must be made by the employer so long as the accommodation does not cause an “undue burden” on the employer. If the accommodation would cause an undue burden then it need not be granted.
But if there is a way to do things that would not cause an undue burden then the employer MUST provide the accommodation. So one possible accommodation would, as I suggested, provide separate lines and service windows for differing transactions and assign a clerk who does not object to the line for marriage licenses. With such a solution there is no case where a same-sex couple is asked to stand and wait for another clerk having just seen the first clerk issue a marriage license to an opposite sex couple.
The employer (and in this cause it is the government, meaning ALL of us) could be liable for damages for failing to provide a required accommodation. Does anyone really want to pay such persons extra because their rights get trampled on too?
But n any event, asking that same-sex couple to wait a moment might not be actionable. A court could say that a slight delay is acceptable.
A granted religious accommodation does not give a right for the employee to say impolite things to the customers. An employer may still require such employee to treat customers politely in accordance with customer service standards. Employers would be wise to develop an approved script of acceptable ways of handling such issues. An employer could take disciplinary action (if it was so inclined) for misconduct if customers are addressed unacceptably.
However there may be limits on what actions can be taken by the government if their employee expresses his religious objections on his own time, off the clock so to speak. I can’t imagine an employer would fare well in court for firing or demoting an employee based upon his statement of personal religious beliefs while on his own time. See Peterson v Wilmur Communications
If they want to go to online only applications, there are ways to do it that allow people without computers to do so. Like kiosks in the clerk’s office , similar to those used for job applications in many retail stores.
I’m fine with accommodation for religious beliefs, if it’s done in a way that’s invisible to the customer. Anyone who objects to that, I would think, is objecting because they want to proselytize at hapless members of the public, to which I say, too bad.
Or at libraries, in those states where there are still libraries