When Public Servants Refuse to Serve the Public

By Garrett Epps, The Atlantic

16 August 15

Government employees have an obligation to follow the letter of the law despite their religious convictions—or else resign the offices they hold.

hirty-five years ago, as a reporter for The Washington Post, I spent 13 weeks following young recruits through Marine Officer Candidate School at Quantico, Virginia. That February, 226 candidates entered OCS; in April, 117—about half—got their lieutenant’s bars.

One of the candidates wanted to be a Marine aviator. He was fit, fast, and smart—good officer material. But as he neared the halfway mark of the training, he underwent a crisis of conscience. OCS training is demanding and martial. Instructors emphasized the realities of combat day after day. (One went so far as to read the candidates “Dulce et Decorum Est” by English poet Wilfred Owen—a vivid description of a World War I gas attack that left blood “gargling from the froth-corrupted lungs” of dying soldiers.)

At some point, this candidate realized he could not in good conscience engage in warfare. “Can I put a squad of men up against enemy fire?” he asked himself. “Can I permit my men to kill other human beings?” He struggled with his beliefs—even debated them respectfully with the battalion commander—but concluded he could not stay.

It was a painful parting on both sides. He lost a coveted career, the Corps lost a promising candidate. But it had to happen.

Here’s what didn’t happen: Nobody suggested that dropping him from OCS was a violation of the First Amendment’s guarantee of “the free exercise” of religion. He did not say, “I think that in recognition of my sincere religious opposition to war, you should let me stay in the Corps and get my pilot’s wings. I will do the job, except for one thing: I won’t drop bombs or shoot guns.”

I thought of that incident on Thursday, when I read Miller v. Davis. In that decision, released Wednesday, District Judge David L. Bunning ordered Kim Davis, Clerk of Rowan County, Kentucky, to issue state marriage licenses to all qualified couples who seek them.

After the Supreme Court decided in June that states must allow same-sex couples to marry, Davis had announced that she and her staff of six deputies would no longer issue marriage licenses to anyone. Barring any couples for getting licenses in Rowan County, Davis claimed, would protect her religious rights without discriminating against anyone. Judge Bunning brushed that argument aside and issued an injunction requiring her to issue licenses. On Friday, she defied the order.

“Kim Davis did not sign up as a clerk to issue same-sex marriage licenses,” said a statement from her public-interest lawyers, Liberty Counsel. “At a minimum, her religious convictions should be accommodated.”

Is it possible to agree on what religious freedom is not? It’s not a right to wear a Marine uniform but refuse to fight. It’s not a right to be a county clerk and decide which citizens you will serve and which you won’t. Religious “accommodation” doesn’t mean what Liberty Counsel thinks it means. If a person can perform the duties of a job with some adjustment for religious belief, that’s an accommodation. If they’re not willing to do the job, they have to leave. That’s not just a requirement of law; honor requires it as well.

Government in particular has an obligation to dismiss any employee who claims a right to discriminate against citizens. It’s not good enough to say, “Go to another county if you want a license.” It’s not good enough to say, “I won’t let anyone get married.” Those aren’t a clerk’s decisions to make.

“Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance,” wrote U.S. Supreme Court Justice Anthony Kennedy,in the 1996 case of Romer v. Evans.

Since the decision in June, many commentators who should know better have been spreading a false narrative. After its decades-long fight for marriage equality, they say, the gay movement has become an intolerant juggernaut crushing anyone who dares to question same-sex marriage. Soon, they warn, federal officials will begin pulling pastors from the pulpits, and judges will order the IRS to strip tax-exempt status from religious schools that do not embrace marriage equality.

Just how all this is supposed to happen eludes me. There is no federal statute forbidding discrimination on the basis of sexual orientation. The Civil Rights Act of 1964, the major federal anti-discrimination law, applies to public accommodations, but does not even cover bakeries. As for tax exemptions, racist schools lost their tax-exempt status as a result of decade-long public administrative process initiated by the Internal Revenue Service. Only the IRS can do this, and only after public debate. There’s no reason to believe it is inevitable—consider that although sex discrimination is also banned under federal law, single-sex schools still retain their exemptions a half-century after passage of the Act.

Colorado’s Court of Appeals Thursday affirmed an order requiring a bakery in Lakewood, Colorado, to accept wedding-cake orders from same-sex couples. That claim arose under state law, and each state’s civil-rights laws are different. Bakers and photographers claim that participating in same-sex weddings—even to the extent of baking cakes or taking pictures—violates their religious-freedom and free-speech rights. My sympathies lie with the customers, but the business owners’ claims are serious ones; taking photographs and baking message cakes involve expression, and First Amendment claims deserve serious consideration.

But any discussion of those issues should take place in a realistic framework. First, discrimination against same-sex couples is not solely a difference of opinion about marriage; it is also discrimination against individuals—the members of the couple and their families—on the basis of sexual orientation. In some cases, legislators may choose not to forbid discrimination; but that’s not the same thing as pretending it isn’t discrimination at all.

Second, the Kim Davises of the world have no monopoly on faith or conscience. Many same-sex couples have married because of their religious beliefs, and many religious bodies, and people, regard those marriages as sacred. Allowing others to disrespect those unions offends some consciences as surely as forbidding it offends others. Civil-rights laws must balance the harms carefully, with attention to both sides. Religious freedom cuts both ways.

Third, religious objections to same-sex marriage do not belong on a special and privileged plane. After Obergefell, the law no longer recognizes a distinction between “gay marriage” and “traditional marriage.” Instead, it simply recognizes marriage. Married couples have to have the same benefits and protections regardless of sex or sexual orientation. If employers or businesses can’t discriminate against married straights, then they shouldn’t be allowed to do so against married gays.

Finally, no matter what settlement emerges after reasonable debate, Kim Davis needs to find another job—now, today, before Judge Bunning throws her in jail. Government serves everyone, and the preferences of its employees aren’t relevant in that regard. Whether it’s flying a fighter jet or issuing a license, an honorable government worker will do the job or quit. Full stop.

The “religious freedom” backlash is, at bottom, not really about the right to order two grooms atop the buttercream fondant. It’s about locking in second-class status, not just for same-sex marriages, but for gays and lesbians generally. Under the banner of “religious freedom,” for example, conservatives in Congress are now seeking passage of the “First Amendment Defense Act,” which would, among other things, sanction employment discrimination against gays by federal contractors.

Human equality is as important as religious freedom, and any sane discussion has to balance the two.