Do Gay Rights Violate Religious Freedom?by jason on Oct. 05, 2011, under Art & Culture, AZ Politics, Christian Self-Righteous Arrogance, Christianity, Conservatism vs. Liberalism, Critical Thinking, Ethics, Faith, Fundamentalism, Gay Marriage, God & Bible, Government, History, Libertarianism, Logic, Mormonism, Reason, Religion, Responsible Government, Sanity, Separation of Church & State, Supreme Court
Is it a violation of someone’s freedom of religion if part of their job requires them to issue marriage licenses to same sex couples? That is the question at issue in the case of a New York town clerk, who feels it violates her religious rights of conscience to issue marriage licenses to gay couples:
The article poses this as a clash of rights. But is it? On the one hand, it’s good, and long overdue, to recognize that same sex couples do have a right to marry. That recognition is required for there to be any kind of “clash” in the first place. So at least one cheer for the article. But what about the rights of the town clerk, who feels that gay marriage is immoral?
Does she have the right to hold that opinion? Yes. I think she’s wrong, but freedom includes the right to hold ideas that others consider wrong.
But does she have the right to let that opinion interfere with the execution of her duties as town clerk? No, she doesn’t. If she gets sued or fired for not issuing marriage licenses to same sex couples, is that religious discrimination? No, it isn’t.
First of all, no one has a right to hold any particular job, least of all a government job. Holding a job is contingent upon, among other things, an individual’s capability and willingness to execute all of the duties required of that job. This is behind the idea of a “Bona Fide Occupational Qualification (BFOQ)”, meaning a legitimate requirement of a job. Some people talk about the need to make “Reasonable Accommodation”, but this needs to be understood as an accommodation that does not reasonably impact one of the legitimate job requirements.
Basically, you can’t discriminate in employement against someone for their religious *beliefs*, and you can’t make them do things that aren’t legitimately required for the job, but you also don’t have to change the fundamental characteristics of a job to accommodate someone’s belief. Which means, this town clerk can believe whatever she wants about same sex marriage. She can even publicly condemn such marriages all she wants – in her off hours. But if she won’t do the job she’s being paid for, which requires that she issue marriage licenses to same sex couples, then the citizens are 100% correct to either sue or fire her ass.
Otherwise we open the door to all sorts of nonsense. Maybe someone has a religious belief that dark skinned people are satan’s followers, like the Mormons originally did, and so won’t issue licenses to people of color. Would that be accepted? Or perhaps someone’s religion tells them to take 3 hours off in the middle of the day to recite prayers – must we accommodate that? Of course we should not. How about something as simple as a bartender who undergoes a religous conversion experience and now believes serving alcohol is a sin and so is no longer willing to do so? Is the bar owner required to keep him on as an employee and make accommodations for his new religious beliefs? Clearly not.
This town clerk in New York should do her job, or vacate the position to someone who will.
That said, two caveats are in order.
The first one is simply that in at least some regards the left has brought this on themselves by persistently attacking the idea of at will employment over the years. Some lefties may take exception to my blanket statement that no one has a right to hold a particular job, particularly if they are unable or unwilling to perform one of the legitimate requirements of the job. Or would, if instead of a town cleark unwilling to issue gay marriage licenses I was talking about a disabled delivery truck driver unable to meet the physical requirements of the job. Principles should be applied equally, no matter whose ox is being gored. And the principle of at will employment is an important one in both government and private sector jobs.
The second caveat is that the entire practice of state issued marriage licenses is an antiquated holdover from more repressive times, when interracial marriages were prohibited. Really, the state should eliminate even the perception of a “clash of rights” by simply stopping the requirement for and the issuance of marriage licenses to anyone, gay or striaght. Instead, counties should accept, but not require, recording of marriage contracts as public documents. The whole idea of a “license” to get married is repugnant to the idea of marriage itself – as if some government bureaucrat failing to grant permission would change who I love and want to spend my life with?
It boggles the mind that those who scream most loudly about “traditional” marriage, the conservative christians, won’t acknowledge how repugnant the idea of government controlling it is in the first place.