Yesterday, the North Carolina House passed a bill that would protect magistrates who object to performing solemnizing ceremonies for same-sex marriages and clerks who object to issuing same-sex marriage licenses. The bill, should it become law, would make it clear that no one can be denied a marriage license but magistrates or clerks could recuse themselves from the process behind the scenes should they have sincere objections to same-sex marriage.
The bill already had passed the North Carolina Senate in February of this year, and now has passed the House. But the governor of North Carolina, Pat McCrory, has vetoed the bill. That’s a mistake, for this bill is good public policy. Government employees have rights, and those rights should be protected. Without this accommodation, magistrates and clerks who refuse to take part in same-sex marriages will be removed from office, and “shall” be guilty of a crime that is punishable by up to 120 days in jail.
Consider a county clerk who has served in her job for decades issuing marriage licenses. Now the government has redefined marriage—and her job. Should she be forced in all circumstances to violate her beliefs? Indeed, two former magistrates are suing the North Carolina Administrative Office of the Courts precisely because they were told to issue same-sex marriage licenses or resign.
They resigned—but they shouldn’t have had to. Indeed, Title VII of the Civil Rights Act of 1964 requires the government to accommodate conscientious objectors as best it can. Title VII applies to all employers, including the federal government, and requires that employers grant reasonable religious accommodations to employees, provided those accommodations don’t create an undue hardship for the employer.
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The North Carolina bill makes it clear that magistrates should be accommodated whenever possible—and, at the same time, that all citizens should be able to receive marriage licenses. In other words, it’s a win-win situation. The law of religious accommodation for public employees is complicated but perhaps not as difficult as we sometimes make it.
Professor Robin F. Wilson of the University of Illinois Law School writes, “A common refrain is that religious objectors in government service should do all of their job or resign. This stance conflates the public receipt of a service offered by the state with the receipt of that service from each and every employee in the office who is available to do it.” In other words, as Prof. Wilson says, citizens have a claim to receive certain “services from the state, but they do not necessarily have a claim to receive the service from a particular public servant.”
Professor Wilson offers an example of “reasonable accommodation” for Title VII purposes from the 7th Circuit:
In Rodriguez v. City of Chicago, for example, a Catholic Chicago police officer, Angelo Rodriguez, requested a reassignment after being posted at an abortion clinic in his district. Officer Rodriguez expressed willingness to serve in the event of an emergency breach of peace at the clinic but asked not to be assigned active duty at the clinic since it would violate “religious beliefs … that prohibit [his] participation in keeping abortion clinics open.” The Rodriguez court noted that “[u]nder Title VII … an employer must reasonably accommodate an employee’s religious observance or practice unless it can demonstrate that such accommodation would result in an undue hardship to the employer’s business.”
Indeed, the court ultimately ruled that the city’s offer to transfer Rodriguez to a district “comparable to [his own] but without abortion clinics,” with “no reduction in his level of pay or benefits,” was “a paradigm of reasonable accommodation.”
Religious objection is not a trump card, but employees’ religious objections should be accommodated when possible. Our law demands a careful—and possibly complicated—balancing of interests. The North Carolina bill is a good way to achieve peaceful coexistence going forward.
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