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View Diary: MD County Clerk reassigns deputies so they won't have to marry gay couples (258 comments)

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  •  No reason to fire her, she's well within the bound (3+ / 0-)
    Recommended by:
    winsock, sethtriggs, mikeconwell

    of EEOC rules regarding religious accomodations in this case.  

    Gay couples will be married in St Mary's County, and the clerks who have religious objections to conducting those ceremonies won't conduct any wedding ceremonies, gay or straight, at all.

    Dont Mourn, Organize !#konisurrender

    by cks175 on Thu Dec 27, 2012 at 05:46:28 PM PST

    [ Parent ]

    •  I'm curious... (20+ / 0-)

      Does this also mean clerks don't have to marry Muslim, Jewish, or black couples if it's against their religion? It's the law, and these deputy clerks should have to abide by it.

    •  If a clerk were to voice a religious objection (17+ / 0-)

      to performing any other sort of legal marriage than one involving two people of the same gender, do you think that would be acceptable? Do you think a reasonable supervisor would accept that from a subordinate?

      "I can't marry them; her bag doesn't match her shoes!"

      "I can't marry them; they look funny!"

      "I can't marry them; he's white and she's Asian!"

      •  If it's possible to re-assign... (14+ / 0-)

        and still keep them fully employed, then I don't see a problem with it, though the deputies are still bigoted jerks for their stance. (and see below...) At least the clerk's office is taking them off of ALL marriage license duties. If it ever comes to the point where there's discriminatory behavior - i.e. it takes longer for a gay person to get a license, or there's a separate gay line, or gays can't come in on Tuesday afternoons - then it's time to start firing unnecessary staff (i.e. the ones who won't do the work that's available).

        In the meantime, I'd suggest the clerk's office educate these morans [sic] on the difference between a civil marriage certificate and marriage sanctioned by the employee's church. Civil marriage is SECULAR - that means no religious bias, and it means that the employee's refusal to issue one is a lawsuit waiting to happen. Yes, that means that the employee is potentially a detriment to his employer and should consider seeking other work. Perhaps the firing won't come today, but being re-assigned to limited (i.e. non-marriage) duties means you're less useful to the employer than a fully capable employee, and that might reflect on future HR decisions.

        Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves. - William Pitt

        by Phoenix Rising on Thu Dec 27, 2012 at 06:50:28 PM PST

        [ Parent ]

        •  It opens a whole can of worms (9+ / 0-)

          The DMV clerk who thinks it's immoral to issue a driver's license to someone who had DUI's on their record will need to be accommodated.  And then the Christian fundamentalist who thinks that Islam is satanic will have to be accommodated so that she doesn't have to issue a building permit for a mosque.  And then the Muslim health inspector will have to be accommodated because they don't want to have to inspect pork.

          If you can't fully do your job, find another.  Don't expect the world to accommodate your bigotry.

          •  That was the point (2+ / 0-)
            Recommended by:
            Justanothernyer, glorificus

            The County Clerk was finding a particular deputy a new job, in a different office within the same division.

            Teh stoopidTM, it hurts. Buy smart, union-printed, USA-made, signs, stickers, swag for everyone: Get your We are the 99% Yard Sign.

            by DemSign on Thu Dec 27, 2012 at 07:54:40 PM PST

            [ Parent ]

          •  Too late. (3+ / 0-)
            Recommended by:
            MRA NY, Justanothernyer, VClib
            If you can't fully do your job, find another.  Don't expect the world to accommodate your bigotry.
            If by "bigotry" you are referring to certain religious beliefs, then yes, some types of bigotry are protected by the First Amendment and the Civil Rights laws.  

            See what the EEOC says on the subject.

            I don't know enough about these particular employees or  this particular job situation to know whether this involved some "sincerely held" "religious belief" that required "reasonable accommodation" or not under the Civil Rights laws.  However, I think that the solution reached here was reasonable.  

            But your position -- that a religious belief that you believe is bigoted should never be protected or accommodated -- is contrary to both the Constitution and the Civil Rights laws.  In some instances, religious beliefs, bigoted or not, are entitled to both.  

            •  Apples and oranges there. (5+ / 0-)

              From EEOC Religious Discrimination:

              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.

              That certainly means an employer has to allow religious garb unless it provably interferes with the job. It means an employer has to make reasonable accommodation for prayer or mandated observances unless that prevents job performance. What is nowhere in any EEOC guidance is that an employer has to accommodate religious based bigotry or exclusivity, beliefs or practices that discriminate against those the business or agency serves.

              Yes indeed, head garb is covered. Moments to pray are covered. Shift changes to accommodate religious observances are covered. Religious discrimination toward others on the job or being served, "I don't serve those particular customers because . . .," is in no way covered.

              The only foes that threaten America are the enemies at home, and those are ignorance, superstition, and incompetence. [Elbert Hubbard]

              by pelagicray on Fri Dec 28, 2012 at 05:47:03 AM PST

              [ Parent ]

              •  Why does that mean that the supervisor (2+ / 0-)
                Recommended by:
                Justanothernyer, VClib

                can't assign duties so as to accommodate religious beliefs?  

                Why can't a supervisor say, performing marriages is 10% of what this office does, we have 5 employees, so you three will be the only ones who perform marriages, and the other two will do more of the other 90% of the duties?  

                I can't see any problem with that.  It's fair to the workers (nobody is working any more than anybody else), It's fair to the people coming in to be married (they get no disruption in service and are served by people who have no reservations about serving them, which makes for a better experience for them) and for the supervisory, it avoids any potential claim (which is always disruptive) whether that claim would be successful or not.  

                I really, really don't see a downside here.

                •  It is really pretty straightforward. (5+ / 0-)

                  If the basic job description for that office is performance of civil marriage, no religious overtones at all, just the state's endorsing a contract between individuals, making such accommodations involves the state in prejudicial behavior. That is the "moral" issue here.

                  If this were not a state function I'd be less interested. Personally I think allowing religious prejudice to govern in any state or state licensed function is a violation of the establishment clause. Thus a state licensed pharmacist refusing any prescription on personal or religious belief grounds becomes the state's issue. Revocation of license is the remedy.

                  Nothing in your misreading of EEOC guidance requires an employer to accommodate an employee's discriminatory or objectionable behavior toward other employees or those being served. That guidance involves the employee's passive behavior, garb for example, or need for time and schedule for private religious expression. EEOC guidance for example would not require an employer to "accommodate" a food server "required" to loudly pray over every dish served. That would in fact violate the customer's religious rights.

                  That is where you and others are just missing the boat here; state involvement and active religious prejudice against others while on the job.

                  The only foes that threaten America are the enemies at home, and those are ignorance, superstition, and incompetence. [Elbert Hubbard]

                  by pelagicray on Fri Dec 28, 2012 at 06:43:08 AM PST

                  [ Parent ]

                  •  Well here's what you don't know. (2+ / 0-)
                    Recommended by:
                    Justanothernyer, VClib
                    If the basic job description for that office is performance of civil marriage, no religious overtones at all, just the state's endorsing a contract between individuals, making such accommodations involves the state in prejudicial behavior. That is the "moral" issue here.
                    What appears to have happened is that these employees were reassigned into jobs where they don't perform any marriages.  At all.  For any one.  

                    And EEOC guidelines make no distinction about the KIND of religious belief.  Legally, EEOC CAN'T say, well, this religious belief is bigoted to others, so we won't accommodate it.  The law CAN'T distinguish between "good" and "bad" religious beliefs.  

                    I have said over and over that we don't know whether this kind of thing is the kind of thing protected under the  Civil Rights laws addressing accommodation for religious beliefs because I'm unaware of a case to this effect.  But the Civil Rights laws are intentionally written in an open-ended way, because it's a case by case situation.  

                    This clerk basically said, ok, we can, without too much trouble, and without disruption in our service to the public,  have other people perform all the marriages and you won't do any but you'll do more of other tasks.   I see no problem with that, and it's the kind of thing that would be a "reasonable accommodation."  

                    •  And, as I've said, in a purely private business (5+ / 0-)

                      that is the owner's right, though not required by EEOC. You will not find anywhere in EEOC guidance a mandate to accommodate an employee's active behavior prejudicial to other employees or customers.

                      What makes this problematic is that the official doing the reassignments is a functionary of the state, an office holder, now making a public gesture and  statement establishing one religious belief prejudicial to citizens that other policy of the state treats without prejudice. The state certifies those citizens have a right to civil marriage. The clerk, an official of the state, has gone on record in "accommodating" other civil servant's religious belief those citizens do not have that civil right.

                      What I see here is very definitely an establishment clause issue. I'd love to see a lawsuit directed toward that clerk and the office on those grounds. I think it is past time this "religious escape clause" for state functions and state licensed functions be challenged on those grounds.

                      The only foes that threaten America are the enemies at home, and those are ignorance, superstition, and incompetence. [Elbert Hubbard]

                      by pelagicray on Fri Dec 28, 2012 at 07:19:12 AM PST

                      [ Parent ]

                      •  It took about 3 minutes to find that mandate. (1+ / 0-)
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                        If what you call " an employee's active behavior prejudicial to other employees or customers" qualifies as a "sincerely held" "religious belief" under the law , then yes, the Civil Rights laws DO require that an employer make "reasonable accommodations" for those religious beliefs.  

                        And a government employer has an additional burden, because the government employer is bound by the First Amendment's "Free Exercise" clause, while a private employer is not.  

                        The disconnect between your comments and my comments is whether "an employee's active behavior prejudicial to other employees or customers" constitutes a "sincerely held" "religious belief" under the law.

                        Let me direct you to the case of Walden v. CDC & Prevention, 699 F.3d 1277 a case from the 11th Circuit this past February. There, the employee, a counselor, took the position that her religious beliefs prevented her from counseling same-sex couples.  The Court accepted the argument that this was a "sincerely held" "religious belief."  And it recognized that a "reasonable accommodation would be for her to refer same-sex couples to other counselors.  Her religious discrimination claim failed she was fired NOT because she made the referral, but because of the way she handled the referral.

                        There's your a mandate to accommodate what you call  "an employee's active behavior prejudicial to other employees or customers" and the accommodation was to allow her to make referrals.  She was fired because of all the other things she said when making those referrals.  She had a right to be allowed not to deal with people when she had a "sincerely held" "religious belief" that prevented her to do so, and the reasonable accommodation was to allow her to make a referral.  What was not allowed was for her to make judgmental statements in the process of making that referral.  

                        Here's a long quote from the case:

                        We accept that Ms. Walden's sincerely held religious beliefs prohibit her from encouraging or supporting same-sex relationships through counseling. There is no need to engage in the Pickering balancing test here, however, because Ms. Walden cannot point to any evidence that Dr. Chosewood or Ms. Zerbe "burdened one of [her] 'sincerely held religious beliefs.'" Watts v. Fla. Int'l Univ., 495 F.3d 1289, 1294 (11th Cir. 2007) (quoting Frazee v. Ill. Dep't of Emp't Sec., 489 U.S. 829, 834, 109 S. Ct. 1514, 1517, 103 L. Ed. 2d 914 (1989)). The record is devoid of evidence supporting Ms. Walden's claim that either defendant called for her removal from the EAP contract due to her religiously-based  [*22] need to refer clients who needed same-sex relationship counseling.

                        Instead, the record is clear that Dr. Chosewood and Ms. Zerbe removed Ms. Walden because of the manner in which she handled Ms. Doe's referral, and because they were concerned that she would behave the same way if a similar situation were to arise in the future. And, significantly, Ms. Walden testified that it was not part of her "religious beliefs" to tell clients, including Ms. Doe, that she could not counsel them due to her religious beliefs or personal values. Instead, she said she wanted "to be honest with my clients." Rec., doc. 82 at 291-92. She further explained that "it seemed unfair that [Ms. Doe] was able to talk about being gay and lesbian, and yet I couldn't freely talk about me and my religious beliefs, or being Christian . . . . To me, it's about honesty. If she can be honest — I mean, I should be honest about why I'm transferring her." Id. at 311-12.

                        Dr. Chosewood testified that he disapproved of how Ms. Walden handled Ms. Doe's referral. He explained that merely referring Ms. Doe due to Ms. Walden's religious conflict "would not have been problematic at all, but sharing her objections to this patient's  [*23] circumstances, her life, I felt was inappropriate." Id., doc. 108 at 27. When asked whether it would have been appropriate for Ms. Walden to state, "Based on my personal beliefs, I don't feel I'm the best counselor for you," Dr. Chosewood replied:
                        There again, I feel like that statement has some — has some bias in it, it has some judgmental tone in it. There are many people who believe that homosexuality is like eye color or color of skin, you know. There's good science that supports that, as well. I would not be happy with her saying something like, you know, "My personal belief doesn't allow me to see someone of your color." To me, that's — it's just not appropriate in that very vulnerable setting when patients are coming to you maybe at their neediest time.

                        So I feel like a referral, perfectly fine. And — but to share, to give any, really, sort of expression of judgment or of displeasure with someone else's situation or choices or life, to me, is not — it does  [*1287]  not further the therapeutic relationship in any way.
                        Id. at 37-38. Dr. Chosewood also emphasized that:

                        •  So you may be interested in some other legal (1+ / 0-)
                          Recommended by:
                          Angie in WA State

                          advice in "Religious Accommodation Under Federal Law: The Essentials, John R. Nicholson, Asst. Attorney General Washington State Attorney General’s Office" (.pdf):

                          Public employer not required to violate Establishment Clause.
                          • Employer may consider impacts on customers and
                          • Employer may be able prohibit employee’s expression if customers or the public would mistakenly believe the expression is the employer’s.

                          And this, with case cites that include Walden, "Conservatives Counseling Gay or Lesbian Clients," indicates the "free speech" issue is limited. What is clear is that an employer has to be reasonably consistent as in the Ward v. Polite case with my emphasis:

                          The school had allowed other referrals for other reasons, so it may have treated Ms. Ward differently based on her religious convictions, and may have been trying to compel her to alter or violate her beliefs.  While this is not the end, the Sixth Circuit reversed the order for summary judgment and sent the case back to the district court.
                          As I said, I'd really like to see this specific case in which the first and second bullets in the Washington State Attorney General’s Office briefing above seem to apply litigated from the establishment clause perspective. It would make a very interesting ACLU decision whether to support the religious views contrary to the mandated state function of that office or the appearance of that office violating the establishment clause.

                          In my purely private citizen's view I am not bothered at all by requirements employers accommodate an employee's reasonable religious requirements and needs even when the requirement and need are to me ridiculous. I am bothered by state recognition and accommodation of religious prejudice toward other employees and citizens in connection with the official civil duties of the office or license. In those cases the individuals can go purely private or an unlicensed field and not involve the state in supporting their prejudices.

                          The only foes that threaten America are the enemies at home, and those are ignorance, superstition, and incompetence. [Elbert Hubbard]

                          by pelagicray on Fri Dec 28, 2012 at 08:56:42 AM PST

                          [ Parent ]

                          •  Again, you are misconstruing the law. (1+ / 0-)
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                            I think you are mixing two different things.  "Reasonable accommodation" of an employee's religious beliefs has never, ever as far as I know been construed as state recognition, or adoption, of those views as its own.  I can't imagine any scenario under which a supervisor said (as in the Walden case) if there are members of the public you for whom you can't perform service A, you just won't perform service A for anybody, but you'll be reassigned to other services, that would be construed as anything CLOSE to a violation of the Establishment Cause.

                            That link says EXACTLY the same things I have been saying.  What you found is a slide in an area that discusses what is a "reasonable accommodation."  And what that slide is referring to is an area of the law that says that, if the accommodation would lead the public to believe that the employer has adopted those views as his own, or is promoting those views, then that's not a reasonable accommodation.  For example, if an employee's "religious belief" would require a very very large sign at any location where they spend more than 1 hour a day saying "There is no God; Religion is for fools," then hanging that sign up is NOT going to be a reasonable accommodation, because a reasonable person coming into the location would think that sign reflects the views of the employer.  But accommodating the religious views of an employee is NOT considered by the law to be a statement that the employer has ADOPTED those religious views.  

                            Other instances where that slide you are reading might come into play is when religious beliefs require an employee to say certain things, or look a certain way, when dealing with the public -- AND those things would lead a reasonable person to conclude that the religious views being supported were views imposed by the employer and were the employer's views.  That's a case by case determination.  By the way, that's one of the problems the employee had in Walden -- simply referring people to another worker was completely proper and not a problem. It would not have been considered an adoption of those views by the employer, or an establishment clause violation.  Lecturing the people she referred on a particular religious view WAS a problem.  

                            The solution derived here completely avoids any possibility of that happening.  The people with the religious beliefs affecting marriage are not going to be dealing with marriage at all.  The person coming into the location for marriage will not deal with them at all.  There's no possible way that that reasonable accommodation could be construed as the workplace ENDORSING those religious views.  The laws sees a distinction between reasonably accommodating someone's religious views (which employers must do) and ENDORSING those religious views, which employers do not have to do (and government employers must not do).  

                            Look at it this way.  Certain Muslim beliefs require women to wear head coverings.  If I wear a head covering when working in a place where that head covering is noticeably different from the uniform and I deal with the public, does that say to the people walking in, "That woman is a Muslim. and her employer allows her to wear the head covering"?  If so, that's fine.  Or does it say to the public, "this is a Muslim workplace, and everybody here is a Muslim"? That's not fine.  However, if I'm the only one, or one of a small minority, of women wearing that head covering, almost certainly that is NOT the message a reasonable person would walk away with.  No court is going to hold that such as situation means the a reasonable person would interpret allowing a few employees to vary the uniform to be an adoption by the employer of those religious views.   And so, if it's a government employer, it doesn't violate the Establishment Clause to let me wear my religious head covering.  

                            In the same way, when people come in for marriage services, and they deal exclusively with people who are happy to perform all legal marriages, there's no possible way for them to conclude that this workplace has adopted, or is endorsing, a religious belief against same-sex marriage.  They may, if they ask a lot of questions, conclude that the government is ACCOMMODATING someone's religious beliefs, as they are required to do.  But ACCOMMODATING someone's religious beliefs is not a violation of the Establishment Clause.  

                          •  I can agree with your take in large part. (1+ / 0-)
                            Recommended by:
                            Angie in WA State

                            In effect that clerk made an attempt to avoid the Walden issue in which subordinates might actively offend. I am a bit puzzled by your use of that case as it pretty clearly supports an employer's right to remove someone whose religious actions cause offense (my emphasis):

                            The Eleventh Circuit decided another similar case, Walden v. CDC, on February 7, 2012. Ms. Walden was a counselor in a CDC program. She upset a lesbian client when she told the client that she would need to refer her because of her personal values. CDC spent considerable effort with Ms. Walden trying to find ways to refer gay and lesbian clients without making them feel worse because of Ms. Walden’s objections to their lifestyle. Ultimately, the CDC laid off Ms. Walden.  She filed suit, and the district court granted summary judgment against her.
                            The courts did not mandate CDC try to accommodate Walden. The case had little or nothing to do with deciding an employer was failing to make an accommodation. CDC did that first. So, again, apples and oranges. The courts ruled against Walden when she wanted more accommodation. So too the clerk in the present case may have bent over backward to accommodate those individuals and Walden seems pretty silent on whether the courts would mandate that in the first place.

                            Where we part company is that by making a "reasonable accommodation" in reassigning employees from a previous core function of a government office the clerk is making another kind of statement, one that could encounter the establishment issue.

                            In the case at hand a government office is supporting a religious prejudice among its employees, individuals that had previously been doing that function, against citizens the state has confirmed have a right to that office's services. The emphasized portion could make this case more akin to Ward v. Polite that turned on exception to previous policy and practice.

                            That office has now said it supports the peculiar religious views running counter to state law and policy, a view offensive to a number of citizens, and thus established a limited endorsement of that particular religious view in a public office.

                            The only foes that threaten America are the enemies at home, and those are ignorance, superstition, and incompetence. [Elbert Hubbard]

                            by pelagicray on Fri Dec 28, 2012 at 10:20:49 AM PST

                            [ Parent ]

                          •  Again, misconstruing the law. (1+ / 0-)
                            Recommended by:

                            One is the part that says that (1) refusing to counsel same sex couples was a sincerely held religious belief and (2) that allowing her to refer those couples to other counselors was a reasonable accommodation. That is considerably more accommodation than the Clerk here did.  The Clerk here said, you can't do marriages at all, not that you can do marriages but can refer same-sex couples to others.

                            Second, is the part where, in addition to that reasonable accommodation, she ALSO thought she had the right to lecture same sex couples as to WHY she wouldn't counsel them.  That is where they ruled against her.  They specifically said that if she had done only part 1, that would have been fine -- no problem -- within her rights.  

                            This is just wrong as a matter of law:  

                            That office has now said it supports the peculiar religious views running counter to state law and policy, a view offensive to a number of citizens, and thus established a limited endorsement of that particular religious view in a public office.
                            Here's your fundamental error.  Under the law, making a reasonable accommodation of an employee's religious views does not constitute "support" of that view or a "limited endorsement" of that view.  There must be something more -- a statement that the one employee's religious views must be followed by everybody else in the office, for example -- to do that.  Saying to one employee, "you can abide by your religious views, and we won't make YOU do anything that violates those views, but OTHERS  are going to be doing those things that violate your religious views" cannot possibly be viewed as endorsing those religious views under the law.  

                            If accommodation equaled "support" or a "limited endorsement," then no government office could comply with the Civil Rights laws.  If "accommodation " equaled "support" or a "limited endorsement," then letting a Muslim woman wear a Muslim head covering, which is an accommodation, would also mean that the government was "supporting" the religious views that women cannot go out in public without covering their heads, and would mean that government was giving a "limited endorsement" to the religious view that women cannot go out in public without covering their heads.  The law specifically does NOT view accommodation that way. The law specifically says that accommodation of a religious belief IS NOT THE SAME THING as "support" or a "limited endorsement" of that belief.  Those slides you linked to make that point.  

                            Let me quote the SCOTUS in Salazar v. Buono, discussing the Establishment Clause:

                            The goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm. A cross by the side of a public highway marking, for instance, the place where a state trooper perished need not be taken as a statement of governmental support for sectarian beliefs. The Constitution does not oblige government to avoid any public acknowledgment of religion's role in society. A relentless and all-pervasive attempt to exclude religion from every aspect of public life could itself become inconsistent with the Constitution. The U.S. Supreme Court has long recognized that the government may (and sometimes must) accommodate religious practices and that it may do so without violating the Establishment Clause. Rather, it leaves room to accommodate divergent values within a constitutionally permissible framework.  

                            There is case after case recognizing that government can -- and sometimes must -- accommodate religious views without endorsing those views or violating the Establishment Clause.  See for example Cutter v. Wilkinson.

                            Your mistake is in equating "accommodation" as is often done, and is sometimes REQUIRED (as by Civil Rights laws) with "endorsing" or "supporting" or "promoting," which is not permitted because it would be a violation of the Establishment Clause.  They are not the same thing, as the Courts have held over and over and over.

                            There may be SOME instances where "accommodation" is so over the top that it would go into the realm of endorsement.  But it would have to be the kind of thing I discussed earlier, where the public would walk in and conclude that this was a religious place endorsing one religion.   Making a reasonable accommodation of an employee's religious views -- one that will never been seen by people who walk in to get married, because all they will see is a clerk who is dealing with them -- cannot POSSIBLY be construed as going so far to accommodate and employee that it, in effect, establishes a religion for everybody else in that office.  In fact, it is doing the complete opposite.  It is saying to those religious employees, "you have those religious views? fine.  You won't deal with marriage.  Others, who DON'T have those religious views, are going to be the ones to handle marriage, INCLUDING marriage for same-sex couples.  You, personally, won't be doing it, but this office WILL BE MARRYING SAME-SEX COUPLES."  How can this possibly be endorsing a religious view for the whole office of being against marrying same-sex couples?  it is the exact opposite --it is saying, "you can keep your religious view, but it most definitely IS NOT the view of the entire office.  YOU PERSONALLY won't be doing same-sex marriage, BUT THIS OFFICE CERTAINLY WILL."

                            There's no possibility that any court would construe that as establishing or supporting or endorsing the religious views against same-sex marriage for the entire office.

                          •  I'll just agree to disagree and let the courts (1+ / 0-)
                            Recommended by:
                            Angie in WA State

                            decide this case if it ever comes to court.

                            Personally I think you are making a long reach into cases that do not quite support your point. Garb, private devotional practices, time off to sacrifice chickens or attend holy retreats hardly apply to a case where apparent governmental support for religious views may be seen by citizens requiring functions of that office as being hostile to citizens seeking a function of that office.

                            The only foes that threaten America are the enemies at home, and those are ignorance, superstition, and incompetence. [Elbert Hubbard]

                            by pelagicray on Fri Dec 28, 2012 at 11:12:47 AM PST

                            [ Parent ]

                          •  My point is that this (1+ / 0-)
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                            may be seen by citizens requiring functions of that office
                            won't happen.  Those people won't be tasked with doing marriages at all.  That means that citizens requiring marriages from that office won't see them at all.  People requiring marriage services won't  see whether or not people they have no dealing with support their marriage.

                            It would be WORSE if the Clerk did what happened -- and what was deemed ok -- in Walden.  It would be worse if the Clerk said, "you don't have to do same-sex marriage, all you have to do is refer them to another clerk without any discussion of explanation of why you are doing that."  That was specifically deemed a reasonable accommodation in Walden.  But if the MD clerk had done that, people seeking marriage would have gone to clerk 1 and have been referred to clerk 2 -- and they might have guessed why they were being referred.  That is not what is happening.  There are no referrals.  When a couple goes to that Clerk's office for a marriage, the only people they will deal with are people willing to perform their marriage.  There's no way they will "see government support for religious views."  They will not even see government ACCOMMODATION for religious views, because what this Clerk did means they do not have to see it.  

                    •  Regarding whether EEOC makes allowances for this, (4+ / 0-)

                      there have been identical cases in states like NY where clerks have made EEOC claims and to date they've gone nowhere.

                      That said, a clerk or county administrator is free to make such job reassignments.    Personally I wouldn't hire someone who can't fulfill a job function, and I'd fire someone who chose not to fulfill that function.

                      •  In a purely private business setting a voluntary (2+ / 0-)
                        Recommended by:
                        skrekk, madhaus

                        accommodation, even if it offends some customers, is a business decision. As long as whatever religious belief was not actively offensive or could be isolated from other employees and customers I'd expect courts to side with the employee. That is where garb, prayer times and holiday leave comes into play. It would be entirely different if an employee in a restaurant refused to serve customers food without praying over it as employee's right to belief stops with a customer's peaceful meal.

                        The issue to me here is whether that clerk, by appearing to endorse prejudicial religious views counter to the state's law and policy for a function of that office, has crossed another line. Has the public support for employees, previously doing a function now wanting to be removed for prejudicial religious reasons, created a "hostile environment" in that public and civil office for citizens toward which such prejudice is commonly directed?

                        Realistically the clerk may be something of a victim here. In skating to avoid a possible EEOC lawsuit she may have skated onto thin ice elsewhere. I'd love to hear discussions in ACLU on which side to take!

                        The only foes that threaten America are the enemies at home, and those are ignorance, superstition, and incompetence. [Elbert Hubbard]

                        by pelagicray on Fri Dec 28, 2012 at 11:03:34 AM PST

                        [ Parent ]

                        •  I'm thinking that while the Maryland marriage (2+ / 0-)
                          Recommended by:
                          WheninRome, madhaus

                          equality law's provision for a clergy exemption was legally completely unnecessary (although probably required politically to gain passage) and redundant of the 1st Amendment, what's really needed is a state law which says that no public employee can discriminate in their job against any class covered under state or federal non-discrimination law and retain their job, regardless of the stated reason.

                          It seems to me that the clerk's actions (and the sentiments of her deputies) is in direct conflict with Maryland's non-discrimination statute, and the teeth in the law need to be stronger.

            •  Which is why the bigots always rule the day. (2+ / 0-)
              Recommended by:
              Smoh, sfbob

              That, in its essence, is fascism--ownership of government by an individual, by a group, or by any other controlling private power. -- Franklin D. Roosevelt --

              by enhydra lutris on Fri Dec 28, 2012 at 07:39:22 AM PST

              [ Parent ]

        •  I guess I have a different read on the story, too. (0+ / 0-)

          Do the clerks make extra pay for doing marriages?
          I always just guessed that they do...a marriage license is issued, and then the couple can choose how and where someone will perform a ceremony.   As clergy, I can perform marriages, fill out the correct legal paperwork, file it in a timely fashion, and charge a fee or not charge a fee (if they aren't church members and I've spent time meeting with them to help plan things, I will charge something.)   If a couple would rather someone else perform the marriage, it is their free choice.  It just has to be a person legally recognized by the state to do the ceremony, witnessed as a legal contract.

          Suppose the clerk is actually proposing a cut in pay to the deputies who refuse?  If police officers can do private details for extra money and the chief says "no details at all for you...." it's an income cut.  MAYBE the clerk is saying "if you want to be bigots, fine.  But you won't be picking up any extra funds performing weddings for anybody, then.   I'll just reassign you."    It might be that this is a very ironic offer of a cut in pay if they don't do their job.....?

          "Because inside every old person is a young person wondering what happened." -Terry Pratchett

          by revsue on Thu Dec 27, 2012 at 08:38:06 PM PST

          [ Parent ]

          •  As clergy you don't actually perform any marriage. (1+ / 0-)
            Recommended by:

            At best all you do is briefly act as a proxy for the state in a non-religious capacity.    I bring that up because unlike a public employee you're free to deny that service to anyone.

            As far as extra pay, getting a marriage license is no different from getting a driver's license.    I rather doubt that there's hazard pay for that.

            •  The way some DMV's operate (1+ / 0-)
              Recommended by:

              being a desk officer there might conceivably constitute hazardous duty. snark

            •  As clergy I most certainly do perform a marriage. (0+ / 0-)

              Until some person administers the contract, with witnesses, the license is a piece of paper.  I act on behalf of a church AND the state, in dual capacity, for those who request a religious ceremony.   I have legal obligations for the state and can be fined or imprisoned for fraud or failure to return paperwork to the state promptly.    

              Couples could also choose a justice of the peace or town, city or state official to administer the oath.  Or have a friend register to do a one-time wedding through the state.  All have the same obligations.

              But you entirely missed the point of my comment, which was that a deputy clerk performing a marriage (administering a contract oath) after the license had been issued might not have been part of the "job" the public paid for.   It just might be an "extra service" some employees were allowed to perform, and the head clerk might have been enforcing a "you pick and choose, you lose" discipline upon those who wanted to discriminate.    Or--it might not be.

              "Because inside every old person is a young person wondering what happened." -Terry Pratchett

              by revsue on Fri Dec 28, 2012 at 09:21:41 PM PST

              [ Parent ]

              •  No, you only act as an official proxy (0+ / 0-)

                for the state, at least in regards to marriage.   Your status as clergy per se is entirely irrelevant as far as the formalization of the marriage itself is concerned, which is a secular function.

                The clergy aspect is only relevant for the "holy matrimony" aspect to the ceremony, which has precisely zero impact on anyone's marital status.

                As far as the issue of a county clerk issuing a license or formalizing the legal contract, that's part of the reason they receive a salary.    It sounds like the bigot clerks have confused marriage with holy matrimony, and need to consult a divorced and remarried Catholic so they can better understand the difference.

                That's why we should do what France does and prohibit any marriage from being formalized in a church, because some people are just too dumb to understand the difference between a legal contract and a religious rite.

                •  Whatever you want to claim. (0+ / 0-)

                  My status as clergy is why I CAN perform the marriage, and have it recognized by the state.   The clerks know very well, I suspect, that issuing a license to do something, and proceeding to step two (actually using that license) are not the same thing.  

                  Licenses are issued only by the state and allow an action to happen as described on the license.  If the action doesn't happen, the license eventually expires.  Do you claim that if the state issues a fishing license, the state must also fish for you?   If the state issues a hunting license, they must bag the deer on your behalf?   If they issue a barber's license, they must also cut your hair?  

                  The marriage license issued by the state is a legal opportunity for a marriage to happen within the dates listed on the license, not the marriage itself (civil or religious).  The state promises to record that event when legal papers prove it has happened.  In my state they have 60 days to complete that action.   A license and a marriage are two different things.

                  You can hate on religion all you want, but it does not make a license and the action of marriage the same thing, any more than a driver's license and actually driving are.   One is necessary for the other, but the fact that the state allows you to drive with a license does not mean you pay them wages to drive you.

                  "Because inside every old person is a young person wondering what happened." -Terry Pratchett

                  by revsue on Sat Dec 29, 2012 at 08:24:58 PM PST

                  [ Parent ]

                  •  Ummmm.....mayors, justices of the peace, etc, (0+ / 0-)

                    all perform exactly the same function as you do as an official witness for the state.    That means your status as clergy is completely irrelevant to the function, even if the state by convention typically authorizes clergy to perform that task (along with many others).    Frankly, you should know this better than you apparently do.

                    You can hate on religion all you want, but it does not make a license and the action of marriage the same thing, any more than a driver's license and actually driving are.
                    A license is the authorization to enter the legal contract, the act of marriage is the formalization of that contract.   Mortgages and bank loans have a very similar procedure.
      •  It's about time! (1+ / 0-)
        Recommended by:
        "I can't marry them; her bag doesn't match her shoes!"
        And no flip-flops, either. ---The plastic sandals, I mean; the indecision is expected.

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