Freedom of Religion

[callmeslick]

The core issue here seems to be about accomodation. Employees can appeal to Title VII, but that doesn't apply for elected officials. So, the question becomes: Would it be appropriate to extend an accomodation to an elected official?

how can it be allowed to be anything other than zero accomodation and still have rule of law?(narrowly addressing accomodation of elected or other public servants of the government)

[Lothar]

There are some states that have laws similar to Title VII for elected officials.

But I'm only partly making a legal argument. Mostly I'm making a philosophical-ethical argument -- namely, that the idea of accommodations exists so that no matter what religion you are, you can't be pushed into violating it by whatever organization you depend on for your livelihood, while simultaneously you can't cripple their ability to perform whatever service they perform. Whether that takes the form of Title VII or RFRA or state-specific regulations or none at all and we're just relying on somebody's supervisor to throw them a bone, it's a good principle.

[Foil]

So, philosophically-ethically-speaking, what happens to that principle when no reasonable accomodation exists? (Given a case where there's no reasonable way to reconcile a religious belief with job requirements?)

[callmeslick]

not really much of an ethical issue in that case, Foil. Do the job, or leave the job. It's a free country.

[Lothar]

So, philosophically-ethically-speaking, what happens to that principle when no reasonable accomodation exists?

The Noesen (birth control pharmacist) case is a good example.

he insists, the conflict could have been eliminated in only one way: by Wal-Mart relieving him of all counter and telephone duties. Noesen, however, was not entitled to that accommodation if it would work an undue hardship on Wal-Mart.

... an accommodation that requires other employees to assume a disproportionate workload (or divert them from their regular work) is an undue hardship as a matter of law.

The result was that Noesen was fired, and the courts sided with Wal-Mart. There was no reasonable way for him to perform his job, not violate his conscience, and not generate excess burden on others. The goal of Title VII, RFRA, etc. is to allow everyone to function without having their rights infringed -- not to unnecessarily bar whole categories of people from certain types of employment, nor to allow them to cause people to be unable to get services, nor to allow them to place excessive burdens on others. Just to resolve the conflict by making reasonable accommodations whenever possible.

[Vander]

So my position has been that some reasonable accommodation should be made for Davis, but I think I'm looking at it wrong. The issuance of valid, legal marriage license cannot be a viewed as a burden which requires accommodation. If all her deputies agreed with her, and also refused to issue licenses, there can be no accommodation reached. It can be argued that since her deputies will issue licenses, that the accommodation of rewriting state law to make those licenses legal is justified, but such an arduous accommodation must be met with compromise for me to see it as reasonable.

If her beliefs preclude her from compromise during the execution of her civic authority, the only compromise she is able to fulfill is her resignation. If she's not willing to enact even that compromise, why should anyone be willing to accommodate her?

[Tunnelcat]

If her beliefs preclude her from compromise during the execution of her civic authority, the only compromise she is able to fulfill is her resignation. If she's not willing to enact even that compromise, why should anyone be willing to accommodate her?

And yet, she refuses to either sign marriage licenses or resign, since she steadfastly refuses to perform her civic duty, creating animosity on both sides and continuing an impass that doesn't seem to have a solution. Is making a stand going to change the fact that gay marriage is now the law of the land and that's the status quo for the forseeable future?

[snoopy]

So my position has been that some reasonable accommodation should be made for Davis, but I think I'm looking at it wrong. The issuance of valid, legal marriage license cannot be a viewed as a burden which requires accommodation. If all her deputies agreed with her, and also refused to issue licenses, there can be no accommodation reached. It can be argued that since her deputies will issue licenses, that the accommodation of rewriting state law to make those licenses legal is justified, but such an arduous accommodation must be met with compromise for me to see it as reasonable.

I agree - the problem isn't that she deserves reasonable accommodation, the problem is that any accommodation that would need to be made would be way past "reasonable" in my book. Kick her out of office (or fire her or whatever) and move on...

[Lothar]

That really depends on how difficult it is for the legislature to tag something on to the next bill they pass. It'd be like a one-line change -- just replace "county clerk" or w/e with "county clerk or any deputy thereof".

[Tunnelcat]

Think they'd actually do that in Kentucky? Smack in the middle of the Bible belt? I'm not being derogatory here, I'm thinking that a highly religious southern state like Kentucky might not want to kick her off the job just on principle.

[callmeslick]

TC nails it. Not enough political courage to do the right thing there.

[snoopy]

TC nails it. Not enough political courage to do the right thing there.

Now, now - let's not conflate what's socially appropriate with what's right. The first comes from the majority, the second comes from a static standard.

[callmeslick]

as has been laid out, the right thing is the ONLY thing. Remove her from office, as she is unwilling to do her job.

[woodchip]

OK, remove her from office. What happens when she runs for the same job in a special election to fill her position and gets voted back in?

[callmeslick]

OK, remove her from office. What happens when she runs for the same job in a special election to fill her position and gets voted back in?

she either does her job or gets removed or jailed again. Yes, I know, it's a revolving door of stupidity, but.....

[snoopy]

as has been laid out, the right thing is the ONLY thing. Remove her from office, as she is unwilling to do her job.

I'm taking issue with you hijacking the word "right." - because to me that indicates judgement based on a static moral code, not the trends of the day. I'd be fine with "best," "appropriate," "correct," or "smartest" - but not so much "right."

[callmeslick]

as has been laid out, the right thing is the ONLY thing. Remove her from office, as she is unwilling to do her job.

I'm taking issue with you hijacking the word "right." - because to me that indicates judgement based on a static moral code, not the trends of the day. I'd be fine with "best," "appropriate," "correct," or "smartest" - but not so much "right."

in a nation based upon rule of law, right is the ONLY proper word to use.

[Spidey]

Yea…law that came from the court, and without any guidance.

[vision]

Yea…law that came from the court, and without any guidance.

Which law are you referring to? The one that says we need to stop treating gay people as second-class citizens?

[snoopy]

in a nation based upon rule of law, right is the ONLY proper word to use.

I'll add "legal" and "lawful" to the list... but you're still misusing "right."

[callmeslick]

Yea…law that came from the court, and without any guidance.

what 'guidance' would you find needed to be imposed, based on the words of the Constitution?

[Spidey]

Yea…law that came from the court, and without any guidance.

Which law are you referring to? The one that says we need to stop treating gay people as second-class citizens?

Yea, the law that left 50 states to deal with a new situation without any transitional period or guidance on how to deal with the new situation.

But that’s what happens when the court makes law.

They changed marriage from a privilege to a fundamental right, and the states are still issuing licenses…why?

Where does the state get the right to license a fundamental right?

................

Slick, funny you mention the constitution, doesn’t the constitution state only the legislature can make law.

[callmeslick]

Yea…law that came from the court, and without any guidance.

Which law are you referring to? The one that says we need to stop treating gay people as second-class citizens?

Yea, the law that left 50 states to deal with a new situation without any transitional period or guidance on how to deal with the new situation.

But that’s what happens when the court makes law.

They changed marriage from a privilege to a fundamental right, and the states are still issuing licenses…why?

Where does the state get the right to license a fundamental right?

that was pre-established. All the court did was make sure it was applied equally to folks previously denied that right.

................

Slick, funny you mention the constitution, doesn’t the constitution state only the legislature can make law.

yes, and that was my point. Law was NOT made here. Instead, the Court merely applied the principles in the Constitution to State Laws which ran contrary to those principles. That IS their job.

[Spidey]

No the court did nothing “merely” they did something monumental. The court made a fundamental change to marriage, instead of doing the correct thing.

The correct thing in my opinion would have been the statement that marriage can not be denied on the basis of sexual orientation, but instead they decided to change the very nature of marriage itself.

[callmeslick]

No the court did nothing “merely” they did something monumental. The court made a fundamental change to marriage, instead of doing the correct thing.

there you go again, assuming that denying people access is 'correct', with ZERO proof to back it up. The court addressed the NATURE of whether marriage was a privilege or a right, essentially for the first time. Yes, what they ruled can be seen as monumental, but not really such in terms of the narrow Constitutional issues, which is their stated role in our government.

The correct thing in my opinion would have been the statement that marriage can not be denied on the basis of sexual orientation, but instead they decided to change the very nature of marriage itself.

without defining the nature(right v privilege) how could they make that statement? Further, when did the SCOTUS get the job of making 'statements'. They are to rule on Constitutional LAW.

[Spidey]

In this context statement meant ruling.

Any institution that raises social status and grants legal rights and privileges has the right to deny membership.

Do you have the fundamental right to practice medicine or law in this country, hell you don’t even have the fundamental right to be in business.

If the court had stopped short of declaring marriage a fundamental right and ruled that discrimination for sexual orientation was illegal, then at least other vetting processes could remain intact.

But anyway my main point is…when the court made its ruling the new situation took affect instantly, affecting thousands of people and businesses already in positions where time should have been given to adapt, an important difference between a court ruling and a law that comes from congress. (which generally has a time frame for implementation)

[callmeslick]

In this context statement meant ruling.

Any institution that raises social status and grants legal rights and privileges has the right to deny membership.

not if that institution is the government.

Do you have the fundamental right to practice medicine or law in this country, hell you don’t even have the fundamental right to be in business.

you have the right to persue those careers. What is your point?

If the court had stopped short of declaring marriage a fundamental right and ruled that discrimination for sexual orientation was illegal, then at least other vetting processes could remain intact.

such as?

But anyway my main point is…when the court made its ruling the new situation took affect instantly, affecting thousands of people and businesses already in positions where time should have been given to adapt, an important difference between a court ruling and a law that comes from congress. (which generally has a time frame for implementation)

oh, so folks should be allowed to 'adapt' to fundamental freedoms being upheld? Seriously? No one here is suggesting that churches marry folks they previously wouldn't have. No one is suggesting that gay marriage somehow supercedes other marriages. No one is forcing a damned soul to participate in the ceremony, to perform a wedding, to attend a wedding nor belong to an institution which sanctifies such unions. To cry out for letting folks continue to discriminate while they get 'used' to it is ludicrous.

[Spidey]

Block veto 1:

Marriage is not a government institution. The government is only the sanctioning body, and by definition a sanctioning body must be separate from the institution itself. (in this context)

Block veto 2:

Point is, a fundamental right doesn’t come with a license.

Block veto 3:

Such as…incest…

Block veto 4:

LOL, you put so many words in my mouth I don’t know how to begin, no I wasn’t trying to imply what you are accusing me of, only that people should be given a reasonable chance to adapt to the new situation, without having to break any laws.

This woman was given two choices when the court made its ruling…both of them bad. One would think in a reasonable society we could move forward in a way that doesn’t force such bad choices.

[callmeslick]

Spidey, there is nothing 'bad' about her choices. Look, a marriage license is simply a permit to GET married, issued by the state, but invalid if the ceremony is not performed. The clerk does not perform the ceremony. Forcing her to issue the license doesn't involve her in the ceremony. Now, as I've said, I don't feel the state should be in the marriage business, and only is because it affects tax law and probate law primarily(other privileges get tossed in around familial rights, but those are the two big ones). Since much of that law is federal, it is somewhat unavoidable for local officials to be involved with the granting of licenses. I can't see any immediate workaround.
Bottom line is that much is being made of very little, in real terms, beyond simple bigotry. The court saw that much and acted accordingly.

[Lothar]

a marriage license is simply a permit to GET married, issued by the state

Which is exactly what Spidey is arguing about. If marriage is merely a government institution, then it's fair for the government to grant or deny it based on whatever principles our elected representatives choose. If marriage is a "fundamental right", then the government should have no right to either grant or deny it, only to acknowledge it -- so there should be no "license" or "permit". Get married if you want to get married, and then demand that the government recognize it, not the other way around. Saying it's a fundamental right, but simultaneously requiring a license from the government, is well outside the norm.

You don't need a free-speech license. You don't need a religious-practice license. These things are treated like rights -- the government lets you do them, and doesn't interfere except in very specific circumstances. If we're going to declare marriage to be a fundamental right, let's demand the government change its approach entirely and act like it's an actual right, and not something to be licensed.

[callmeslick]

a marriage license is simply a permit to GET married, issued by the state

Which is exactly what Spidey is arguing about. If marriage is merely a government institution, then it's fair for the government to grant or deny it based on whatever principles our elected representatives choose.

However, under our Constitution, access to that institution cannot be administered unequally. The rest of your argument flows from the flawed premise that such can be denied. We have clear examples previously with this VERY institution. The court had to address interracial marriage bans in Virginia and other states nearly 50 years ago.

[Lothar]

a marriage license is simply a permit to GET married, issued by the state

Which is exactly what Spidey is arguing about. If marriage is merely a government institution, then it's fair for the government to grant or deny it based on whatever principles our elected representatives choose.

However, under our Constitution, access to that institution cannot be administered unequally. The rest of your argument flows from the flawed premise that such can be denied.

The rest of my argument flows from the correct premise that allowing the government to license something (implicit: allowing the government to decline to license) means it's not being treated as a fundamental right available to everyone equally.

[callmeslick]

The rest of my argument flows from the correct premise that allowing the government to license something (implicit: allowing the government to decline to license) means it's not being treated as a fundamental right available to everyone equally.

equal status under the law IS a fundamental right, and has been from the get-go. Not that we've always adhered to that until the Court or President or Congress intercede, but the wording is there.

[Lothar]

The rest of my argument flows from the correct premise that allowing the government to license something (implicit: allowing the government to decline to license) means it's not being treated as a fundamental right available to everyone equally.

equal status under the law IS a fundamental right, and has been from the get-go. Not that we've always adhered to that until the Court or President or Congress intercede, but the wording is there.

Fundamental rights aren't licensed. They're recognized. Using the "fundamental right" terminology but still treating it as something that's licensed is incoherent. It doesn't fit together. If marriage is a fundamental right, you should not have to ask any government authority for permission! Instead, you should get married, and then tell the government you have gotten married (if you want to), and they should accept that without question.

[callmeslick]

The rest of my argument flows from the correct premise that allowing the government to license something (implicit: allowing the government to decline to license) means it's not being treated as a fundamental right available to everyone equally.

equal status under the law IS a fundamental right, and has been from the get-go. Not that we've always adhered to that until the Court or President or Congress intercede, but the wording is there.

Fundamental rights aren't licensed. They're recognized. Using the "fundamental right" terminology but still treating it as something that's licensed is incoherent. It doesn't fit together. If marriage is a fundamental right, you should not have to ask any government authority for permission! Instead, you should get married, and then tell the government you have gotten married (if you want to), and they should accept that without question.

we license gun ownership, yet that is considered a fundamental right. And, I agree with you as to how marriage should be handled, but isn't(you get married, announce to the state that you are married, done).

[Lothar]

we license gun ownership, yet that is considered a fundamental right

Some states license gun ownership. That's also widely considered to be a violation of that fundamental right.

I agree with you as to how marriage should be handled, but isn't

so stop advocating half-assed measures and advocate for the correct approach.

[callmeslick]

we license gun ownership, yet that is considered a fundamental right

Some states license gun ownership. That's also widely considered to be a violation of that fundamental right.

I agree with you as to how marriage should be handled, but isn't

so stop advocating half-assed measures and advocate for the correct approach.

sorry, so long as the end result of the current measures(likely to change slowly at best) is that gay people cannot be recognized as married, I have no intention of stopping my advocacy. That is the way one has to approach the US system. As Boehner was trying to explain to his caucus in the House the other day, the US system is designed for slow change, most of the time, in the LAWS. The only immediates are SCOTUS rulings and exec orders. The first of those is limited to Constitutional issues around the law, the latter limited to executive branch functions and responsibilites.

[Lothar]

sorry, so long as the end result of the current measures(likely to change slowly at best) is that gay people cannot be recognized as married, I have no intention of stopping my advocacy.

I'm not saying you should stop your advocacy. Just that you should advocate for real solutions. Treat bandaids like bandaids instead of lauding them like they actually solve the problem overall.

[Tunnelcat]

Now please tell me how this case is going to be solved to the satisfaction of both parties? I don't see either side budging.That's why people have to advocate, to either fight for a change politically/legally or at least try to steer opinions in their favor. In this case, I only see a brick wall of resistance and little attempts at compromise. Either side loses something in any compromise.

[Spidey]

Gun ownership is a protected right…(freedom)

Self defense is a fundamental right…

Some may consider gun ownership a fundamental right, but human inventions probably don’t and can’t fall into that category.