I think it will be interesting to see how the Supreme Court, for one of the cases or another will certainly reach the Supreme Court, reconciles its decision in Obergefell v. Hodges, the “No Religious Test” clause of Article 6 Paragraph 3 of the Constitution:
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.
the “Free Exercise” clause of the First Amendment:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
and suspensions or terminations of county clerks for refusing to issue marriage licenses to homosexual couples.
I mean exactly what I say. I’ll be interested in seeing how they accomplish it. Because they all but certainly will have the task of reconciling them soon enough.
Not happy about the courts shoving gay marriage down everyone’s throats, but I don’t see the particular problem here. County clerks have duties which they are obligated to do. Gay marriage is the law of the land now. Issuing marriage licenses is one of the duties of county clerks and whatnot. Issuing a marriage license doesn’t mean the person issuing the license approves of any particular marriage, or some class of marriages. It means they’re doing their job.
I’m willing to be persuaded on this issue, if someone can show me some analogous situation in which clerks are permitted to NOT do their duties because of a religious exemption, but as it stands I just don’t get it.
If a clerk’s religion forbids him or her from issuing such a license and the definition of the job compels it, that’s the very definition of a “religious test”.
When the judges in Massachusetts issued their ruling a decade ago which sent the whole “gay marriage” snowball rolling, I observed that the correct policy resolution was to get the government out of the marriage business entirely. The resolution now seems to be to get the churches out of the civil marriage business which I suspect will create problems of its own.
This is not a question of imposing a “religious test” as defined in Article VI on this Clerk or any other government official, and it is not about her free exercise of religion. She is a government official charged with specific duties, among those duties is the issuance of marriage licenses as required by the laws of Kentucky. She is also bound by the Constitution of the United States and the rulings of the Supreme Court. Were she a private business owner, this would be a different story, but she is not. If she is unable to do her job, then she needs to leave office.
Additionally, I would note that all of her legal arguments have been rejected both by a United States District Court Judge and by Sixth Circuit Court of Appeals (apparently without dissent by any member of the 6th Circuit panel that handled the case). I suspect the Supreme Court will reject her request for a stay because she has no real chance of succeeding on the merits, and that the Justices will in all likelihood not grant her an appeal on the underlying case. At that point, her choice will be to either comply with the Court Order specifically directing her to cease discriminating against same-sex couples in the issuance of marriage license, or be held in contempt of Court.
I honestly do not see the conflict you are positing here.
That explains the situation pretty well but it doesn’t explain why that is not a religious test.
It isn’t a religious test because she isn’t being required to make a profession of faith in order to hold her office. The fact that she claims, absurdly in my opinion and apparently in the opinion of at least four Federal Court Judges in Kentucky, that doing her job somehow violates her religious beliefs is not a “religious test” as defined in Article VI.
As to the free exercise clause question, even if one were to concede that requiring her to provide a piece of paper to a same-sex couple was a violation of her rights under that clause, that does not end the analysis. A court then needs to consider whether the government action is in furtherance of a “compelling state interest” and whether the state has pursued that interest via the least restrictive means possible. I would submit that Davis’s claims fail under both of these standards because it seems obvious that issuing marriage licenses as required by law is a compelling state interest and that Davis’s office is the only place in Rowan County, KY with the authority to do that. Also, the means that the government is using to achieve that goal do no seem restrictive at all given the fact that this is merely a ministerial act and that Davis is apparently not only refusing to issue licenses herself but also barring her deputies from doing so.
Dave Schuler: I mean exactly what I say.
So per your reasoning, government employees could refuse to serve Muslims, or Catholics, or blacks, or whites, or the disabled, as long as they claim they are doing it for religious reasons.
For the purposes of the U.S. Constitution, the clerk *is* the government. The Constitution and laws constrain the clerk’s activities while acting as an agent of the government.
To expand on this as a Catholic and a reasonably well-informed one if I were a county clerk issuing marriage licenses to homosexual couples would not be a problem for me. Civil law is not the sacrament of marriage.
Catholic priests may be forbidden to officiate at the marriage ceremonies of homosexuals but that’s a church disciplinary issue. IMO compelling them to do so would be an express violation of the free exercise clause of the First Amendment.
I still do not see how what you’re describing is not a religious test. Just taking her word on face value, she is being asked to deny her religious beliefs in order to hold her job. That’s not a religious test?
The way I think this should be handled is that reasonable accommodations need to be made for people whose religion bans them from doing certain things. To take a less controversial topic, should Muslims be barred from seeking jobs as USDA inspectors because it might require them to handle pork? Should they be compelled to handle pork in order to retain their jobs?
My answer to that question is that inspecting pork is not the totality of the job of a USDA inspector. Have Muslims inspect chicken. These are the sort of accommodations you make in a pluralistic society.
@Dave Schuler
If a clerk’s religion forbids him or her from issuing such a license and the definition of the job compels it, that’s the very definition of a “religious testâ€.
I do not know of any religions where that was the case prior to this ruling. Meaning, the religion forbid the person to assist in any furtherance of a homosexual act. This would include selling condoms, renting hotel rooms, etc. I do not think Catholics are forbidden from selling birth control as part of their job even though it is forbidden to be used.
A Jewish person following the Orthodox rules may have a case, but they probably would be forbidden from working there in the first place. I suspect it would be similar for Muslims.
She is trying to be a martyr for her faith, but what she is doing is building the cross, climbing up, and nailing herself to it. She is then wailing and moaning, and she wants God to not forgive them for they know exactly what they do.
I suspect that if we examined her life we would find that she was not living her life according to her faith, and if so, this is a political stunt using God as a prop.
That’s a good, valid point but IMO it also leads to a very slippery slope.
I honestly don’t know whether Catholics are enjoined from selling birth control. I’ve never dwelt on the subject. Certainly, some Catholic institutions have been taking that stance or something very much like it WRT the health insurance they think they are allowed to offer employees.
I don’t think that’s relevant. Hypocrisy does not absolve governments at any level for barring the free exercise of religion.
As a society we may decide that this “free exercise” stuff is a bunch of baloney and that only one set of beliefs may be held. Alternatively, we can deal with the implications of a pluralistic society which may include considerable inconvenience and even hardship. The question is how absolutist we will be and in which direction.
Catholic institutions would differ from an individual working for a secular institution.
She can engage in political stunts, but that is protected under freedom of speech not freedom of religion. Her freedom of speech does not protect her employment status, and it is not a religious test.
Just did the research. The teaching of the Catholic Church is that Catholic pharmacists may not morally dispense birth control drugs or abortifacients. A Cathoic pharmacist may be subject to discharge for refusing to do so but sometimes you are persecuted for your faith.
However, because of the constitutional provisions governments in the U. S. are held to a different standard than private organizations.
I think you’re overstating the meaning of the “No Religious Test” Clause. By it’s very language and it’s history, it seems clear that it is addressed primarily if not exclusively at preventing the situation that existed during the Colonial Era when those holding a position under the Crown were required to take an oath to the King not only as a secular leader, but also as the leader of the Church of England, and to pledge support for the Church of England. I don’t think it can be properly applied to what is essentially a condition of employment, in this case the requirement that the Clerk of Court issue marriage licenses in conjunction with the law and I’m not aware of any historical record of case law that would support that interpretation.
I pretty much agree with everything Mataconis has written above. I don’t see how handing out forms can constitute a burden against one’s religious convictions in this place. This isn’t much different that issuing forms for the payment of taxes, or registering one’s car. It is a paperwork issue.
Now, for those public officials that must actually perform marriage ceremonies, that is perhaps a bigger step against one’s convictions. In such cases I can imagine it might be preferable to make some sort of accommodation available. But even here I’m not so sure. When one goes to the courthouse to get married (which my wife and I did, as an aside), one gets married under the auspices of the government only. It is a _civil_ ceremony. So I’m not even sure I buy the opt-out there, although I’m more willing to do so. But not for shuffling paper around from one filing cabinet drawer to another.
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I’ll note that the fundamental problem is that we have gone from having a government constituted to serve society to having a society which is expected the bend itself to the will of the government, especially to the whims and fashions of five people who aren’t even elected. There’s a reason so many people I know (including me) have exactly zero respect for our government or its officials or pronouncements. Given that most of those folks are the kind of conservative folk that WANT to respect their institutions, we’ve entered very dangerous ground.