Before we get into this, it needs to be clear that Kim Davis should not be signing marriage certificates. Not because gay couples should be kept by government from freely marrying in any church that will marry them, but because government has no role in marriage.
It’s a religious ceremony. (Funny how the most ardent advocates of separation of church and state are also the loudest advocates of government recognizing gay marriage, but that’s another post.)
If you think government should be involved, there’s a contract for that:
Regarding Kim Davis, the Christian Democrat county clerk in Kentucky who is now sitting in a jail cell for her refusal to issue a marriage license to gay couples, it’s interesting to consider this issue from a different position.
The issue here is Davis won’t issue a marriage license because she says it would be a violation of her faith.
But what if Kim Davis were Muslim? Would she still be in jail for refusing to do her job?
There is precedence that says she would not. In fact, if she were Muslim, it might even be the government suing for discrimination.
Since this is a situation where a worker is refusing to do an assigned task on religious grounds, we’ll forego all the lawsuits filed because Muslim men wanted to wear beards even though their employers had policies against them. We’ll also exclude the lawsuits where Muslim women wanted to wear hijabs despite employer dress codes that prohibited them.
Let’s focus on situations where Muslims flat out refused to do their jobs on religious grounds.
Safoorah Kahn was a teacher at MacArthur Middle School. She requested unpaid leave to perform hajj – a pilgrimage to Mecca the Koran says must be taken once in a Muslim’s life, when they are physically and financially able. The school denied her leave, so she resigned and went to Mecca. And she sued the school district for religious discrimination. The U.S. Justice Department settled the lawsuit against the school district for “$75,000 in lost back pay, compensatory damages and attorneys’ fees.” The school also had to develop a policy accommodating religions and provide training on said accommodations.
Star Transportation fired two Muslim drivers after they refused to haul loads with liquor in them. The two cited their religion as the reason. In May of 2013, the Equal Employment Opportunity Commission sued the trucking firm, saying they “refused to provide two employees with an accommodation of their religious beliefs.”
Failure to accommodate the religious beliefs of employees, when this can be done without undue hardship, violates Title VII of the Civil Rights Act of 1964 which prohibits discrimination on the basis of religion. The EEOC filed suit, (EEOC v. Star Transport, Inc., Civil Action No. 13 C 01240-JES-BGC, U.S. District Court for the Central District of Illinois in Peoria, assigned to U.S. District Judge James E. Shadid), after first attempting to reach a voluntary settlement through its statutory conciliation process. The agency seeks back pay and compensatory and punitive damages for the fired truck drivers and an order barring future discrimination and other relief.
The EEOC said Star Transport could just give the two men loads without booze and it wouldn’t be a big deal. Now get a load of this:
John Hendrickson, the EEOC Regional Attorney for the Chicago District Office said, “Everyone has a right to observe his or her religious beliefs, and employers don’t get to pick and choose which religions and which religious practices they will accommodate. If an employer can reasonably accommodate an employee’s religious practice without an undue hardship, then it must do so. That is a principle which has been memorialized in federal employment law for almost50 years, and it is why EEOC is in this case.”
What does “undue hardship” mean? According to the Wall Street Journal, “the details are tricky.”
It is loosely defined as resulting in more than minimal costs or burden to accommodate a worker, which includes causing drops in efficiency or safety, burdening other employees or incurring certain expenses, according to federal regulations and EEOC guidelines.
You can focus on the idea of undue hardship, but the issue here is the “accommodation of religious beliefs.” These guys weren’t asking for time to pray and being refused. They weren’t saying they should be able to wear beards, as commanded by the Koran. They were saying the Koran says we shouldn’t drink alcohol, so we refuse to be party to another person’s sin.
And the federal government went to bat for them.
How is that different than Kim Davis? It isn’t, but a federal judge put her in jail for it.
When the Supreme Court announced their decision legalizing gay marriage across the country, President Barack Obama praised it, saying ““that all Americans are entitled to the equal protection of the law. That all people should be treated equally, regardless of who they are or who they love.”
It follows that all people should be treated equally, regardless of who they worship.
Hat Tip: Dan from Squirrel Hill