Friday, September 04, 2015

For Some, Religious Discrimination Means Not Being Able to Impose Their Religious Beliefs On Others

Kim Davis, a Democratic Kentucky County Clerk, was imprisoned for refusing to issue marriage licenses (to any couples) because she believes God's law forbids marriage of same sex couples.

From a public administrative perspective, this would seem to be pretty cut and dried - she's required to carry out the duties of her job and not let her religious beliefs interfere with those duties.  So I've been poking around the internet to find out more about her and her beliefs to figure out why she isn't doing the obvious.

For those in a hurry, here's my preliminary hypothesis:

1.  She's worked in a very closed system - her mom has been her boss for years.
2.  She found Jesus after a life with less than "Christian values' marriage record.  Her actions may be part what her new faith tells her and part a convert's attempt to prove her faith.
3.  She's represented by a radical Christian law non-profit that is probably pushing her to be a martyr and get the law group more attention. 

For an example of #3, here's what Kim Davis' attorney said: 
“Today, for the first time in history, an American citizen has been incarcerated for having the belief of conscience that marriage is the union of one man and one woman,” Mr. Gannam said after a hearing that stretched deep into Thursday afternoon. “And she’s been ordered to stay there until she’s willing to change her mind, until she’s willing to change her conscience about what belief is."
I guess I'd rephrase this.  She's not being incarcerated because of her religious beliefs.  There are lots of people who share the same religious beliefs and they haven't been incarcerated for them.  She's being incarcerated because as the county clerk, she's not performing her legal duties to issue marriage licenses and that non-performance is interfering with the legal rights of people her office is supposed to serve.

What's religious discrimination at work?
Let's be clear about religious discrimination at work.  The US Equal Employment Opportunity Commission tells us that people may not be discriminated against because of their religious beliefs.  If there is a conflict with an employee's religious beliefs and their job duties, the organization should try to make reasonable accommodations.  From the EEOC website:
"Religious Discrimination & Reasonable Accommodation. The law requires an employer or other covered entity to reasonably accommodate an employee's religious beliefs or practices, unless doing so would cause more than a minimal burden on the operations of the employer's business. This means an employer may be required to make reasonable adjustments to the work environment that will allow an employee to practice his or her religion.
Examples of some common religious accommodations include flexible scheduling, voluntary shift substitutions or swaps, job reassignments, and modifications to workplace policies or practices."
So an employer (and this is aimed at all employers, not specifically at governments as employers where the obligation to serve the public is even greater) should attempt to find an accommodation.  In this case, she could, as the court suggested, delegate the task she finds objectionable, to someone else.  There are deputies in the office who are willing to do this.

But since Davis is the head of the office, I can see her thinking that if she lets a deputy issue a license to a same-sex couple, it would be the same as if she were condoning it.  This gets us to the next level of consideration.  Is making an accommodation an undue hardship to the office and the people it serves?  Back to the EEOC website:
"Religious Discrimination & Reasonable Accommodation & Undue Hardship. An employer does not have to accommodate an employee's religious beliefs or practices if doing so would cause undue hardship to the employer. An accommodation may cause undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work."
In the Davis case, it compromises one of the duties of the clerk's office - to issue marriage licenses - and it causes major harm to some members of the public.  Apparently, Davis' way of accommodating her religious beliefs was to stop issuing marriage licenses to anyone.  She's not, in her mind, discriminating because heterosexual couple also are denied marriage licenses.  The court rejected that. 

To turn this around and say that Kim Davis is being discriminated against based on her religious beliefs is understandable only if you believe that Kim Davis has the right to impose her religious beliefs on the people of her county who  have the legal right to wed.

Here's some interesting background I found while trying to understand Davis' reasoning.

1.  Davis has been a deputy county clerk for over 24 years, working under the chief clerk, her mother.
2.  Working for a relative is legal in Kentucky.  
3.  There were some challenges to her salary which was significantly greater than the deputy sheriff and chief judge deputy.  (I didn't see how long these two had been in office compared to Davis.)
4.  She's an Apostolic Christian.
5.  When her mother stepped down, Davis ran and won.  I'd note she beat her Democratic primary opponent by 23 votes, or by less than 1/2 percent.

From The Morehead News:
"The highest staff wage in 2011 – $63,113 – was paid to Bailey’s chief deputy clerk, Kim Davis, who also happens to be her daughter.     Davis is listed at $24.91 hourly for a 40-hour work week and an annual wage of $51,812. She received an additional $11,301 in overtime and other compensation during 2011.     Her rate of pay apparently triggered most of the complaints, The Morehead News has learned from various sources.     Kentucky law permits elected county officials to employ family members and to set their levels of pay. It is a common practice throughout the state."
 She has been married four times to three different men, according to US News and World Report. Wikipedia (which has put most of these references together) describes her marriages this way:
Davis has been married four times to three different husbands. Her second and fourth husbands are the same. The first three marriages ended in divorces in 1994, 2006, and 2008. She is the mother of twins, who were born five months after her divorce from her first husband in 1994. Her third husband is the biological father of her twins, who were adopted by her fourth husband, Joe.
Look, I'm not judging her here.  Love and marriage is hard to figure out, especially when you get married at 18.  We don't know what her circumstances were.  But I suspect this past, which is not the ideal of her new faith, puts some pressure on her to show that she is now truly committed, like standing firm for her idea of God's will in this case. 

She became an Apostolic Christian in 2011.  Their website may help people understand the stand she is taking. 
Apostolic Christian beliefs are rooted in a literal interpretation of the Bible. We believe that the Bible’s teachings are applicable to all times and all cultures.
I'm not sure this is how they mean it, but the words suggest that they believe that everyone should obey the doctrine they believe.  

Their doctrine might also help us understand why a woman who has had a somewhat turbulent married life might now be standing firm with her new beliefs:
We believe salvation is obtained by grace through faith in Jesus Christ. True faith is evidenced by obedience to God's Word, which instructs a soul to do as the Lord Jesus emphatically taught, "Repent: for the kingdom of heaven is at hand."1 The biblical pattern of repentance is observed, which includes godly sorrow2 for a past sinful life, confession of sins, restitution for past wrongs, and becoming dead to sin. The wonderful and matchless grace of God is given to those who are humble in heart, along with peace and forgiveness from God.
Following conversion, which is manifested by a new walk of life in Christ, the convert gives a testimony of his or her faith and conversion experience to the congregation. This is followed by water baptism by immersion.3 Baptism symbolizes the burial of the old sinful nature into the death of Christ, and the subsequent rising of a soul out of the baptismal waters as a new creature in Christ Jesus. This is followed by the laying on of hands, whereby a church elder prays over the new member. This prayer acknowledges and entreats the presence of the Holy Spirit in the believer's heart, and consecrates the new child of God into a life of service for him. The new member is thus formally united with the church, which is Christ's body.
Self-denial, separation from sin and unfruitful works, and nonconformity to worldliness are integral parts of the Christian walk of life and they lead to a life of peace and joy." [emphasis added]
 So as a convert to a religion that frowns on her former lifestyle, she could feel strongly compelled to stand firmly by the new teachings of the church.  We'll see whether this ultimately leads to peace and joy. 

The proper action for a government official whose religious beliefs are in conflict with his official duties is to either find an accommodation or resign from the position.  An accommodation was offered - allow others in the office to issue the licenses - and rejected by Davis.  Her key option now is to resign and find a job that is consistent with her religious values.

Another contributing factor may be the legal non-profit - Liberty Counsel - supporting her.  Other clerks in her situation apparently have found resolutions without resorting to lawsuits.    Raw Story reports that another right wing Christian legal non-profit that fights against same-sex marriage, Alliance Defending Freedom (ADF), has found solutions for their clients.
"Jim Campbell, an ADF lawyer, said his group has not consulted with Liberty Counsel on the Kentucky case and is not representing any county clerk in related litigation. Campbell said he worked with a few employees of county clerk offices outside Kentucky seeking to avoid issuing licenses to same-sex couples based on religion and said those situations were resolved within those offices and had not escalated to a lawsuits."
The RawStory article includes a comparison between the ADF and the Liberty Counsel:
Among those who support gay marriage, Liberty Counsel has a reputation for being more extreme than ADF.
“Liberty Counsel is among the most irresponsible of ‘Religious Right’ organizations,” said Greg Lipper, an attorney at Americans United for Separation of Church and State. “ADF at least tries to fit its legal arguments within existing law; Liberty Counsel openly flouts it.”
 It's hard for anyone to know what is in the heads of people like Liberty Counsel executive director Matthew Staver, a former law professor at the Jerry Falwell founded Liberty University.  To a certain extent, he probably believes his cause is right and just.  But possibly there's also a need to get attention.  Is Kim Davis a perfect client to make this losing case with?  Or is she an imperfect client who finds herself in way over her head?  Her life has been difficult already.  This may not be the best option for her future well being.  Right now she's in jail and Staver isn't.

And so called liberal organizations have also looked for good situations to make their legal and political points.  But this seems such a totally lost cause, so out of step with the law.  


  1. Steve -- I think your analysis is right on, about Davis's motivations and about her probable manipulation by the Liberty Counsel (whose 10 fulltime lawyers have been working for 20 years against same-sex marriage, and are probably looking for new jobs these days).

    Interestingly, this hoohah will probably serve to defeat the Democratic candidate for governor this fall. He is currently the state attorney general and refused to appeal the federal court decision that KY's anti-same-sex-marriage law is unconstitutional. He said it would be stupid to do so, since the suit was bound to lose and cost a lot of money. He was right on both counts, of course, but the voters in all their intolerant wisdom are going to take it out on him. (I hope I'm wrong, but I wouldn't bet on it.)

  2. Kathy, Since you're in Kentucky, I'll assume you have a much better sense of what is going on and so appreciate your support of my hypotheses. Thanks for taking the time to let me know.


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