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Oregon Judge Refusing To Perform Same-Sex Marriage Ceremonies

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A trial court Judge in Oregon is now the latest government official to refuse to participate in civil marriages between same-sex couples:

PORTLAND, Ore. – A Marion County judge has refused to perform same-sex marriages and has asked his clerks to refer couples seeking same-sex marriages to other county judges.

Judge Vance Day, a circuit court judge and former chairman of the Oregon Republican Party, is now facing an ethics investigation over that decision, according to the judge’s spokesman.

Spokesman Patrick Korten said Day instructed his staff to tell couples that the judge will not perform same-sex marriages. The staffers were instructed to refer same-sex couples to other Marion County judges willing to issue them a marriage license.

Korten said Day took the action based on his “deeply-held religious beliefs.”

“It’s an exercise of his religious freedom rights under the First Amendment,” Korten said.

Day hasn’t performed any same-sex marriages since he joined the bench in 2011, but only stopped doing marriages of any kind this past spring. Judges in Marion County are not required to perform marriages, and Marion County’s website lists five active judges and one retired judge who are available for marriage ceremonies.

That decision led to an ethics investigation by the Oregon Commission on Judicial Fitness, Korten said.

Korten said he couldn’t discuss specifics of the complaint against Day until the commission released it to the public.

It’s not clear when that complaint will be made public. Until that happens we won’t know the exact details of what Day is accused of doing, aside from what he publicly discusses.

According to Phil Lemon with the Oregon Judicial Department, the commission isn’t required to publicize complaints until they schedule a public hearing.

Given the ongoing public debate that has been prompted by the case Rowan County, Kentucky Clerk Kim Davis, who continues to sit in jail due to her refusal to issue marriage licenses to same-sex couples, the case of Judge Day is likely to get more national attention than it otherwise would. On the surface at least, the analogy seems pretty obvious given the fact that Davis and Day are both government officials who are refusing to do their duties in connection with civil marriages due to the legalization of same-sex marriage. The situation, though, is slightly different because of the fact that as County Clerk, Davis is required by Kentucky law to issue marriage licenses to all people who otherwise meet the statutory requirements. Judge Day, on the hand, is not statutorily required to perform civil wedding ceremonies, and there are apparently some Judges who sit in the same Court that Judge Day does who do not perform ceremonies at all and have not done so for many years. However, the analysis doesn’t necessarily end there, and the facts behind Judge Day’s decision could pose a problem going forward.

This case is nearly identical to one that arose in Toledo, Ohio in the aftermath of the Obergefell decision. In that case, trial Court Judge C. Allen McConnell refused to perform a ceremony for a same-sex couple based on what he said were his personal religious beliefs. Several weeks later, though, after McConnell’s actions were copied by several other Judges across the state, the Ohio Supreme Court, which oversees judicial ethics in the state, ruled that neither McConnell nor any other Judge in the state could refuse to perform ceremonies for same-sex couples if they made themselves otherwise available for ceremonies for opposite-sex couples. The Court also stated in its informal, advisory opinion that it would also be improper for Judges to decline to perform any marriage ceremonies at all just to get out of performing same-sex ceremonies. This doesn’t mean that a Judge could never decline to perform ceremonies, but the Court noted that if they do they may be required to provide some reasonable justification, such as an increased case load that makes taking the time out to perform ceremonies on a daily or weekly basis difficult. The Court also did not say that a Judge who refused to perform same-sex ceremonies, or all ceremonies, could be subject to discipline, although one imagines that such action could be possibly if the action were part of a broader pattern of discriminatory activity. Instead, the Court said that such Judges would at least be required to recuse themselves from any future cases involving same-sex couples because of the apparent prejudice, and again one imagines that parties could also argue for recusal in any case where a party’s sexual orientation was at issue. Obviously, a Judge that refused to recuse themselves in such cases could potentially be subject to discipline in the future.

The cases of Ms. Davis and Judges McConnell and Day seem to make clear that, while most of the country seems to have moved on from the same-sex marriage debate in the wake of the Supreme Court’s decision, there remains a small minority continues to resist. and that a new battleground has been opened:

Kim Davis did more than register a protest when she went to jail last week after defying a federal court order to issue marriage licenses to gay couples. Ms. Davis, the clerk in Rowan County, Ky., also helped unravel an uneasy détente in the nation’s culture wars that had prevailed since the Supreme Court declared a constitutional right to same-sex marriage in June.

Some Republican presidential aspirants rushed to the defense of Ms. Davis, a Democrat, and other public employees who say sanctioning same-sex marriage undermines their religious freedom. Her resistance seems certain to generate a burst of new legislation aimed at carving out exemptions for such employees, and it could spur others to risk jail in states like Alabama, where religious objections are strong.

Ms. Davis, 49, who has said she attends her Apostolic Christian church “whenever the doors are open” and who cited “God’s authority” in turning away gay couples who sought to marry, has emerged as a heroine to religious conservatives, many of whom feel deeply aggrieved by the Supreme Court’s 5-to-4 decision on same-sex marriage, in Obergefell v. Hodges. Her lawyer, Mathew Staver, called her “the poster child for why you need religious liberty exemption laws.”

Yet her jailing by a Federal District Court judge, David L. Bunning, a former federal prosecutor who was appointed to the bench by President George W. Bush, has also exposed divisions within the Republican Party. While all 17 Republican presidential contenders are opposed to same-sex marriage, not all of them embraced Ms. Davis.

Although polls show more than half of Americans support same-sex marriage, a national survey released in July by The Associated Press found that Americans were split on whether state and local officials who have religious objections should be required to issue marriage licenses to gay couples. Forty-nine percent of respondents said officials should not be required to do so; 47 percent said they should.

(…)

Twenty-one states have some form of religious-exemption law, but just one — North Carolina — has a specific measure exempting public officials from participating in same-sex marriages, according the Movement Advancement Project, which tracks gay-rights legislation. Some legal experts, including Katherine M. Franke, a law professor at Columbia University who studies religious freedom and sexual liberty, say the North Carolina statute will not hold up in court — for the same reason that Judge Bunning ruled that Ms. Davis must issue licenses.

Government officials, Professor Franke said, “don’t have a First Amendment right to pick and choose which parts of the job they are going to do.”

Other states, including Georgia, Minnesota, Oklahoma, South Carolina and Texas, this year considered passing religious exemption laws targeted to public officials but failed. Religious conservatives say they expect similar measures to be proposed as state legislatures reconvene in the coming months.

Other states are trying to tackle religious objections in other ways. In Alabama, where probate judges in 13 of 67 counties are, like Ms. Davis, declining to issue marriage licenses to anyone, State Senator Greg Albritton, a Republican, said some of those judges were “preparing to go to jail” if ordered, as Ms. Davis was, to issue same-sex marriage licenses. When the Legislature convenes a special session next this week, Mr. Albritton said, he intends to reintroduce legislation requiring couples to draft their own marriage contracts, which the state would simply record, putting Alabama out of the business of issuing marriage licenses.

“Kentucky is a precursor to where we are headed,” Mr. Albritton said.

Even before the Obergefell decision, the issue of how the law should handle people who claim to have sincere religious objections to same-sex marriage was becoming a hot political issue. In March, the state of Indiana passed a law modeled on the Federal Religious Freedom Restoration Act which many critics asserted would provide private businesses with a defense to claims of discrimination against people based on sexual orientation, which is barred by municipal legislation in cities such as Indianapolis but not statewide. After a tremendous public uproar, Indiana Governor Mike Pence ended up asking the state legislature to pass an amendment to the law that made clear that it could not be used a s defense in discrimination cases. The legislature did this is quick order, and Pence signed it into law. At the same time that the Indiana bill was being debated, a similar bill was pending in Arkansas, and even though it passed Governor Asa Hutchinson ended up asking for changes in the law similar to those in Indiana after a public outcry that included critical statements from Walmart, the state’s biggest employer. Additionally, efforts to pass similar legislation in states such as Georgia, Virginia, Nevada, North Carolina, and Louisiana were quickly abandoned in the wake of the Indiana controversy. Louisiana Governor Bobby Jindal did try to implement part of the proposed Louisiana law via Executive Order, but that’s not surprising given his previous statements on the issue and it’s not clear that his order actually accomplished anything. Nonetheless, the debate over how to handle religious liberty issues in these situations is one that remains unresolved and is one that is likely to be around for some time to come.

The cases we’re seeing right now, though, are fundamentally different. Kim Davis and Judges McConnell and Day are public servants, elected pulic servants at that, who took an oath to follow the law, and that includes the legal recognition of same-sex marriage. When they refuse to issue a license or perform a ceremony for same-sex marriages, it is fundamentally different from the case of the baker who refused to bake a cake for a same-sex wedding reception. In the baker’s case, we are dealing with a private business and, unless there is a law barring discrimination based on sexual orientation, they are free to refuse to do business as they choose. Even if there is such law, they at least have a somewhat of a credible case that they should be provided an exemption, especially if there is a RFRA law in their state. This is not true of public servants like Clerks and Judges. When they act, they are acting as agents of the government, and when they discriminate they are effectively condoning illegal discrimination by the government. This kind flouting of the Rule of Law is simply impermissible, and people in this position need to either follow the law or quit their jobs. That is why exemption statutes such as the one passed earlier this year in North Carolina are unacceptable, and why politicians like s Ted Cruz, Mike Huckabee Bobby Jindal,, and Texas Attorney General Ken Paxton are simply wrong when they support such proposals. The idea that public servants should be able to pick and choose who they provide services to is something that nobody who believes in equality under the law should accept.

So far, the case of Kimberly Davis is sending the right signal. If you are a government official or employee and don’t follow the law, and if you ignore the orders of a Court, you will pay the price. Perhaps this will send a message to others who make think like she does that they need to either change their outlook, or find a new job.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. michael reynolds says:

    Thank God for the stupidity of our foes. I appreciate these efforts to remind gay and gay-friendly voters that the fight ain’t over just yet.

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  2. al-Ameda says:

    Day took action because of what he described as “deeply-held religious beliefs,” KGW reported. “It’s an exercise of his religious freedom rights under the First Amendment,” Day spokesman Patrick Korten told the news station.

    Apparently the judge has no understanding of the First Amendment.

    He has the right to worship as he pleases, at the church of his choice. Nowhere in the First Amendment is there language that permits a judge to turn his offices, or his county offices, into a place of worship.

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  3. Gustopher says:

    We opened the door to this type of thing when we started letting pharmacists not fill prescriptions based on their religion.

    There are a few differences here:

    1. The judge is acting as the state, while a pharmacist is acting as the employee of a company.

    2. There is no great harm in having to wait a few days to find another judge. Contrast that with the pharmacist not dispensing the morning after pill.

    3. The judge is referring people to other judges willing to do the ceremony. Pharmacists are not required to do this, and that hateful woman in Kentucky is not doing this.

    4. He is not setting a policy for his staff to follow his religious objections, a huge difference with that hateful woman in Kentucky. I’m not sure of whether pharmacists can do this — my expectation is that someone controls what drugs are even onsite.

    The only difference that troubles me is the first one, but I also don’t think that government employees should receive less protections than private employees.

    Not having to perform a marriage ceremony seems like a reasonable accommodation, so long as there are others who are willing to do so in a timely manner. I roll my eyes, and think he’s a fool, but it seems reasonable.

    And, yes, there is a difference between a civil marriage and a religious marriage from a legal standpoint, but I am willing to entertain the notion that it is far blurrier from a religious standpoint, and defer to that so long as the job is getting done.

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  4. Jack says:

    Doug,

    I look forward to your next article explaining how state and local officials in NY, CA, DC, and Chicago who refuse to issue handgun licenses because it’s against there deeply held beliefs despite the Heller and McDonald decisions should also go to jail.

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  5. wr says:

    @Jack: “I look forward to your next article explaining how state and local officials in NY, CA, DC, and Chicago who refuse to issue handgun licenses because it’s against there deeply held beliefs despite the Heller and McDonald decisions should also go to jail.”

    I’m sure he will — just as you produce one single, solitary case of this actually happening. Which of course you can’t. But that doesn’t stop the right wing pity party… because nothing can do that!

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  6. Argon says:

    Actually, if we go too far in accommodation we run the risk of opening the door to nationality, race, religious and gender discrimination.

    I’m OK with some level of accommodation under the conditions that:
    You don’t unduly burden others.
    You cease performing the equivalent services for others, e.g. you stop performing any marriages henceforth.
    Your exemption does not affect the performance of others.
    It doesn’t place an undue cost burden on the office, e.g. no one needs to be hired to cover the work you won’t do.
    It represents a tiny portion of the work covered by the job.

    From what I’ve read about the head clerk’s case in Kentucky, it’s possible for other clerks to issue licenses when she is unavailable. A simple accommodation she could have managed would be to absent herself from the office if a same sex couple came in for a license. The other clerks could then issue the license and once done she could ‘make herself available’ again. Alas, she chose to go with the fiction that all licenses in her office had to go through her, which I’ve read, is something that not all Kentucky counties do.

    Aside: Apparently, if you don’t perform your job that’s OK if it’s for ‘Religious liberty’, but you’re a leech and ‘taker’ if you support sick and maternity leave.

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  7. al-Ameda says:

    @Jack:

    I look forward to your next article explaining how state and local officials in NY, CA, DC, and Chicago who refuse to issue handgun licenses because it’s against there deeply held beliefs despite the Heller and McDonald decisions should also go to jail.

    So do you think the Davis situation and this one are actually freedom of religion cases?

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  8. Just 'nutha ig'rant cracker says:

    @Argon: The distinction is easy. In the first case, no privately held money or capital is being directed to the person not performing his or her job. Tax revenues, being fungible, are spent no matter what, so no harm comes to the bottom line of the business or corporate entity (they don’t pay extra taxes to make up the loss). In the other case, “that money is coming out of MY pocket!” (even if it comes from a budgeted compensation pool).

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  9. OzarkHillbilly says:

    You know what I get for refusing to fulfill the obligations of my job?
    >
    >
    Fired.

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  10. Joe says:

    @Gustopher: I just posted this link in another string (https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/09/04/when-does-your-religion-legally-excuse-you-from-doing-part-of-your-job/), but I think the article lays out a pretty sensible approach and seems to reflect the actual law on the subject rather than just everyone’s – including my – knee jerk reaction.

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  11. JohnMcC says:

    @Joe: Good article at the link. Recommended.

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  12. James says:

    @wr: I hate to side with Jack, but it happened to my brother. He has an Illinois permit and when he came to visit me in Pennsylvania hr went to get a Non-Resident permit. State law requires that they be issued to any Non-Resident who had a valid permit in their state. He ended up calling three adjacent counties before he found one that would issue the permit.

    On a different note, Davis is Apostolic? Maybe there are regional differences but there was a sizeable population in my Wife’s hometown and women weren’t allowed to work (or go to school after high school).

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  13. George Wallace says:

    Straight-only marriage now, straight-only marriage forever!

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  14. just me says:

    I do think there are some differences here.

    The clerk in Kentucky was blocking all marriage licenses and issuing them is a defined part of her job. Also, her job essentially filing the paperwork. I don’t see any action here that would violate her religious beliefs.

    I think the judge is different. He isn’t required to offer marriage services, so they parents defined part if his job. Also, while it is a civil ceremony he is still being asked to actually participate in the ceremony and marriage to him may mean more by definition. I just think this is one area where government employee of not it us a failure to consider or respect his beliefs.I think when it comes to religious exemptions officiating a wedding is a step too far. I am also curious why any gay couple would want to force a judge to officiate at their wedding if they are opposed to the union.

    Personally I would like to see states stop issuing licenses, allow anyone yo officiate (in PA you could ask anyone to officiate) and the only involvement from the state would be entering the contract.

    Also the first amendment does not grant the freedom to worship. It grants the freedom to express you religion. The first amendment does not limit one to only freedom in worship or choice if who yo worship.

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  15. george says:

    I’m not sure why religious beliefs should carry any more weight than any other deeply held beliefs. Either let every gov’t clerk decide what they want to do or not do on any aspect of their job description, or make everyone perform every aspect of their job description. The religious exemption is simply biased.

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  16. JohnMcC says:

    @George Wallace: If you were paraphrasing Gov Wallace’s famed ’63 Inaugural speech you’d have said:

    Straight marriage now, straight marriage tomorrow, straight marriage forever.

    Accuracy matters.

    @al-Ameda: “Nowhere in the first amendment is there language that permits a judge to turn his offices or his county offices into a place of worship.” Actually, that is pretty much what the 1st Amendment prohibits — an ‘establishment of religion’ by a government authority.

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  17. OzarkHillbilly says:

    @just me:

    I am also curious why any gay couple would want to force a judge to officiate at their wedding if they are opposed to the union.

    How’s about because they pay taxes for the services of their gov’t and want said services delivered to them just as they are to any other citizen? You know, equality under the law?

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  18. James Pearce says:

    @Joe: Interesting article from Volokh. To hear him tell it, this whole problem could be fixed by taking Kim Davis’s name off the paperwork. It would satisfy the “accommodation” parts of the RFRA, sure, but why does he think it would satisfy Kim Davis?

    It’s almost as if he doesn’t take into account the politics. And while I appreciate Volokh’s lawerly attention the merits of the case, he should appreciate that Davis is not just a Christian of conscience seeking religious relief, but she’s also an activist fighting for a cause. It’s not relief she seeks, but a backdoor into legal discrimination.

    She went to jail to take her name off the license? She was foaming at the mouth about “authority under God” because she wanted the paperwork to read “County Clerk” instead of “Kim Davis?”

    God bless this world for having Volokh in it, truly. But gimme a break…..

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  19. just me says:

    But why insist the judge with religious objections officiate rather than the judge who is fine with it?

    Also, judges in this man’s state aren’t required to officiate weddings. They have the authority to do so if they choose but their jobs do not mandate availability for weddings.

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  20. James Pearce says:

    @just me:

    But why insist the judge with religious objections officiate rather than the judge who is fine with it?

    The only thing I insist on is showing up at the courthouse and getting my business done, whether Mr. Religious Conscience is working that day or not.

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  21. Tony W says:

    @george:

    I’m not sure why religious beliefs should carry any more weight than any other deeply held beliefs

    This is an excellent point. I disagree with many policy positions of my employer, but I am not free to disregard those policies without repercussions. Many religious people feel they somehow don’t have to abide by the rules, even while shrieking about the “soft on crime” liberals. There is seemingly no recognition that, at this point, the dingbat from Kentucky is a criminal.

    I suppose they pick and choose laws to follow just like they do bible verses. When they start screeching about mixed fabrics and bacon cheeseburgers I suppose they’ll be at least intellectually consistent.

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  22. Just Me says:

    Tony you do realize however your employer must make reasonable accommodations for your religious beliefs?

    Everyone seems to think that if religious belief and employment are in conflict there are only two choices-comply or lose your job but US legal precedence-federal RFRA and state ones say reasonable accommodations must be made.

    In the case of this judge-since officiating at weddings isn’t required as a part of his job the accomodation is easy-he doesn’t have to do weddings. Problem solved.

    I think in this case NC’s law gets it right. A judge who doesn’t want to officiate homosexual weddings files and exemption paper that says he isn’t doing any weddings and if a couple wants a marriage the judges who say they are doing weddings gets assigned. The judges have to file the papers every 6 months.

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  23. Kylopod says:

    @george:

    I’m not sure why religious beliefs should carry any more weight than any other deeply held beliefs.

    You are entitled to that opinion; however, you need to realize that this is profoundly not what current civil-rights law holds. Religious beliefs do get extra protection. As Eugene Volokh explains in the article linked to earlier:

    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.

    So, for example, if an employer declines a Jewish employee’s request to take off for Yom Kippur, and the Jew can prove that taking the day off won’t cause the company an undue hardship, he will have a good lawsuit on his hands. But the same employer would be perfectly within his legal rights to fire an employee who refused to come to work on “my own personal holiday,” regardless of the cost to the company.

    Kim Davis’s situation doesn’t pass the undue hardship test for protecting her religious beliefs, but it is still a fact that in our legal system it is required that some accommodations be made to respect an employee’s religious beliefs.

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  24. OzarkHillbilly says:

    @Just Me:

    Tony you do realize however your employer must make reasonable accommodations for your religious beliefs?

    You do realize however that as a gov’t employee one is sworn to uphold the Constitution? By oath or affirmation? Citizens should not have to go out of their way to accommodate a county clerks religious beliefs. They should be able to walk in, conduct their business, and walk out.

    Or what part of the First Amendment do you not get?

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  25. DrDaveT says:

    @just me:

    Also, her job essentially filing the paperwork. I don’t see any action here that would violate her religious beliefs.

    Her religion apparently requires her to ensure that homosexuals are denigrated and inconvenienced at every possible opportunity.

    If she were a Christian (for example), things would be different.

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  26. george says:

    @Kylopod:

    So, for example, if an employer declines a Jewish employee’s request to take off for Yom Kippur, and the Jew can prove that taking the day off won’t cause the company an undue hardship, he will have a good lawsuit on his hands. But the same employer would be perfectly within his legal rights to fire an employee who refused to come to work on “my own personal holiday,” regardless of the cost to the company.

    Yes, but why is it that way? One person has religion as the most important element of their life, perhaps another has surfing. Why give preference to one over the other? A more reasonable approach would be allow everyone to state their choice (religious, hobby, whatever) and grant exemptions accordingly.

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  27. Kylopod says:

    @george:

    Yes, but why is it that way?

    In a word, history. The CRA of ’64 didn’t limit itself to Jim Crow, but addressed a whole range of issues including gender and religion. For much of American history, Jews and Catholics were the targets of a tremendous level of religious discrimination. For example, employers could force Jews to work on Saturday, making them have to choose between their religion and their livelihoods without any legal recourse. It was practically the opposite of the Kim Davis situation: it wasn’t religious people interfering with the rights of others, it was the Protestant majority imposing its values on those who didn’t conform.

    A more reasonable approach would be allow everyone to state their choice (religious, hobby, whatever) and grant exemptions accordingly.

    But would you really want it to be legally binding? Let’s say an employee claims the Super Bowl is the most important part of his life, and he sues for the right to take off work. Assuming he can prove his absence doesn’t cause undue hardship to the company, your argument would suggest the company could be forced by law to comply with the person’s request.

    The fact is that even with all the civil rights protections, and even with labor unions, employers still have considerable leeway to behave like dicks. They can impose arbitrary and unfair rules on their employees and often may fire them for almost any reason.

    What civil rights laws have done is give special protection to certain groups that historically have faced discrimination. The amount of groups to receive protection has expanded over time; in 1964 the idea of applying these laws to LGBT Americans was unthinkable to most people. But it’s important to realize that the aim of these laws isn’t so much to make companies fairer as to prevent their attempts to stamp out certain people’s identities in a country that values its racial, ethnic, and religious diversity. I don’t see how surfing has much to do with that.

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  28. Tony W says:

    @Just Me:

    Tony you do realize however your employer must make reasonable accommodations for your religious beliefs?

    I both realize it – and think it is ridiculous.

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  29. al-Ameda says:

    @James Pearce:

    The only thing I insist on is showing up at the courthouse and getting my business done, whether Mr. Religious Conscience is working that day or not.

    Game, set, match.

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  30. grumpy realist says:

    @al-Ameda: That’s why the constraints on public officials are much higher. The government is a monopoly when it comes to its services–it’s not like there’s a duplicate office doing exactly the same thing next door. Plus, their salaries are getting paid by the taxpayer who is being denied services.

    Hence Public officials do not equal ordinary workers in private business.

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