A county clerk in Kentucky says her religious beliefs bar her from issuing same-sex marriage licenses, and a federal judge tosses her in jail.
A coal miner in Pennsylvania is forced to retire after insisting a biometric hand scanner violates his beliefs, and a federal court awards him a cool half-million.
Two workplace religious freedom cases making news. Far different outcomes. What gives?
According to church and state experts there’s the short answer, and then there’s the long answer.
The short one is this: The miner, Beverly R. Butcher Jr., is an employee with standing to seek religious accommodation under the law, whereas Rowan County, Kentucky, Clerk Kim Davis is an elected official bound by oath to uphold the law. That changes how the legal system handles their claims for religious accommodation.
Of course, for the parties involved in religious freedom lawsuits filed in federal and state courts, the answer is more complicated.
The Equal Employment Opportunity Commission (EEOC) clarified rules for religious accommodations last year in response to the growing number of religious discrimination complaints. (The number of complaints has doubled since 1997.)
In February, an EEOC fact sheet showed it had filed 68 lawsuits for religious discrimination since 2010. Those suits are usually filed after an employee and their employer fail to work out a religious accommodation on their own. That figure doesn’t account for the countless suits filed over violations of city ordinances or state laws that don’t go through the EEOC.
Perhaps the best known EEOC case in recent years was the one Abercrombie and Fitch lost in the US Supreme Court in June, involving a Muslim woman who wasn’t hired for a sales job in Tulsa, Oklahoma, because she wore a hijab. The company said the headscarf violated its dress code. Several lesser-known EEOC victories dealt with scheduling issues, such as employees forced to work on the Sabbath or denied time off to attend religious events.
CT asked a variety of experts what they think of developments in the Davis and Butcher cases and what’s next.
To recap the latest: Judge David L. Bunning released Davis from jail on Tuesday, satisfied that her deputy clerks were issuing same-sex marriage licenses, and barred her from interfering with them. Consolidation Coal Co. says it will appeal Butcher’s win—he alleged the company’s hand scanner had to do with the “mark of the Beast.” The company refused to give him the same accommodations they gave to employees missing fingers.
What’s the primary law that informs the handling of these cases?
Title VII of the 1964 Civil Rights Act is cited in religious accommodation cases involving private or government employers, said Howard M. Friedman, a University of Toledo law professor. He’s the founder of Religion Clause, a blog devoted to religious freedom and church-state issues.
Sometimes other laws take precedence. Friedman pointed to this year’s legal loss by an Ohio man who disavowed his Social Security number, believing it to be the mark of the Beast, and wouldn’t provide it to a potential employer. Employers face IRS penalties for not collecting Social Security numbers.
Why can’t Davis find protection under Title VII?
It doesn’t apply to elected officials like Davis, said Jeffrey Usman, Belmont University assistant professor of law. Davis ran for and was elected to her post last year.
But there are other, practical complications when it comes to religious or ethical beliefs in the workplace, Usman said. What about a devout Catholic clerk refusing to issue a license to someone who’s been divorced? Or an Orthodox Jew refusing to issue one to an interfaith couple? Or a vegan clerk refusing to issue a fishing license? Should they be granted accommodations as well?
Charles Haynes, director of the Religious Freedom Education Project at the Newseum, said that Davis is going a step further than refusing to issue marriage licenses for same-sex couples—an act she says goes against her Apostolic Christian faith.
“Even if the Kentucky legislature passes legislation allowing clerks to opt out, which appears likely, that would not satisfy Mrs. Davis,” he said. “She contends that the clerk’s office should not give same-sex couples marriage licenses because such marriages break God's law. Kim Davis has a right to the free exercise of religion, but that right does not extend to using her office to violate the constitutional rights of others.”
In that case, are there any protections for Davis?
She’s seeking protection under Kentucky’s Religious Freedom Restoration Act, which reads: “Government shall not substantially burden a person’s freedom of religion. The right to act or refuse to act in a manner motivated by a sincerely held religious belief may not be substantially burdened unless the government proves by clear and convincing evidence that it has a compelling governmental interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest. A ‘burden’ shall include indirect burdens such as withholding benefits, assessing penalties, or an exclusion from programs or access to facilities.”
The question is whether Davis is being substantially burdened, Usman said. Bunning, in his ruling, said she wasn’t.
“While she may be entitled to some accommodation—for example, not having her name on the license—she is not entitled to prevent couples in Rowan County from obtaining a valid marriage license because of her religious beliefs,” Usman said.
Why hasn’t Davis been fired?
As an elected official, she can be impeached but not fired, said Alan Lescht, a Washington, D.C.-based employment attorney whose firm handles religious discrimination cases. He doesn’t see Davis prevailing if she continues her strategy. “When the Supreme Court of the United States rules, there’s really no further appeal from that,” he said.
Davis's laywers have said she would allow other officials to issue licenses if her name and her office do not appear on the form. Her deputies have already removed her name on an unofficial basis.
Why might one claim for accommodation succeed and another fail?
It depends on whether the court finds a company has a good reason for what it’s requiring employees to do, Lescht said.
In all religious freedom lawsuits, the court also must determine the facts of the case and whether the discrimination is real. Oftentimes a company’s stated reason for firing an employee is attitude, performance, attendance, or some other issue unrelated to religion.
“We have to show that the reason given is not true, it’s a pretext to cover up an unlawful motive, and the real reason has to do with a protected class,” Lescht said.
Haynes believes there is a flaw in Title VII religious protection itself. Employeers can refuse to grant an accommodation if it causes an “undue hardship.” But often those hardships are actually minor inconveniences, says Haynes.
“That's why a broad coalition of religious groups has been trying for many years to amend Title VII to strengthen the requirement that employers provide reasonable accommodation,” he said.
What social forces might contribute to a trend of more religious freedom complaints being filed?
Friedman points to two major drivers: Greater numbers of observant Muslims in the US workforce and more conservative Christians feeling that they’re being discriminated against.
“Whether that discrimination is accurate or not, the perception is there,” he said. “And you have less inclination on the part of employers to accommodate hijabs, etc.”
Lescht said he’s not seeing more cases in his firm but believes that news coverage of the most unusual cases—like those involving the mark of the Beast—tend to overshadow the vast majority, which typically deal with conflicts in scheduling.
“We have a case right now where a guy worked in a restaurant, he’s a Seventh-day Adventist, and the manager changed his schedule to work Saturdays and then fired him,” Lescht said.
We’ve discussed two major cases in the news now. What cases should we be watching that are coming down the pike?
Usman suggests EEOC v. Star Transport Inc. and Little Sisters of the Poor v. Burwell. The first is the case of two Illinois truck drivers who refused to deliver alcohol due to their Muslim faith. In the second, a Catholic charity argues that complying with Health and Human Services mandates requiring employers to provide contraception is a violation of Catholic doctrine.
Friedman said he’s interested in the case of a Williamson County, Texas, applicant for constable who was asked questions about his views on same-sex marriage, abortion, and religion. A judge recently dismissed a request for summary judgment, and the case is heading to trial.
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