Compromise Can Be the Best Way

A compromise on LGBT nondiscriminination rights and religious liberty rights requires that both sides recognize that the other also has rights, and that sometimes these rights conflict and reasonable and workable compromises must be sought.

I’m more partial toward recognizing the right not to be forced to engage in activities that violate religious conscience in the private sector, and in particular the rights of small business owners not to be forced by the state to engage in expressive activities that violate their beliefs. But it seems like the outcome of this North Carolina case regarding a public official is fair to both sides—the individual magistrate does not have to officiate at the same-sex wedding ceremony as long as someone is on hand to provide these services.

This, by the way, differs from the situation in 2015 involving County Clerk Kim Davis in Kentucky, where she would not allow anyone in her office to issue same-sex marriage certificates, including clerks who had no issues with doing so.

A different compromise was reached in that case: Gov. Matt Bevin issued an executive order that removed the names of all county clerks from marriage licenses issued in Kentucky. I wrote at the time:

Government officials are responsible for following the law of the land, even when doing so is at odds with their own religious beliefs. They are public servants, not private, self-employed service providers.

But it’s for the good if a small, symbolic action can defuse a contentious “culture war” face off and serve civility without diminishing individual rights, and I tend to see that happening here.

Allowing individual magistrates to opt out as long as no couple is denied a prompt marriage takes things a bit further, but if no couple is harmed I don’t see a problem. It’s akin to not making religiously observant employees work on the sabbath.

25 Comments for “Compromise Can Be the Best Way”

  1. posted by Lori Heine on

    A “symbolic action,” further scrambling the distinction between the public and private sectors. Well, this site may be in SOME sense conservative, what it most certainly is NOT is libertarian.

    What We, the People are forced to pay taxes for should be available to ALL. And anyone who takes a job with the government is a public servant. If he or she refuses to do the job, then that person should be fired.

    No wonder the Left fails to understand the difference between the public and private sectors. Thanks to “conservatives” like these, the line keeping that distinction continues to be erased.

  2. posted by Tom Scharbach on

    … the individual magistrate does not have to officiate at the same-sex wedding ceremony as long as someone is on hand to provide these services …

    But, of course, individual magistrates would be required to officiate at other wedding ceremonies to which a magistrate might have a religious objection — inter-racial marriages, inter-religious marriages, inter-sect and/or inter-denominational marriages, marriages of a couple in which one or both have been divorced, and so on.

    In addition to further blurring the line between the public and private sectors, as Lorie points out, the “compromise” puts the government in the position of legitimizing some religious beliefs but not other, similar, religious beliefs, and violates the “class-neutral” prong of the “equal means equal” test, setting aside same-sex marriage as worthy of special, government-sanctioned discrimination.

    What ever happened to the days when government officials were expected to perform the duties of their offices, or find another job? Hell, even Stephen, two or three years ago, drew that line, distinguishing between private citizens and government officials. But no longer. I can’t wait to see what the next “compromise” will be.

  3. posted by Tom Scharbach on

    Well, I think I just found the next “compromise” Stephen will be touting, as reported by Fox Carolina.

  4. posted by MR Bill on

    So you’re saying that some government officials who are involved in providing paperwork for citizens have the arbitrary right to refuse service to some of those citizens? I think they should get in another line of work…
    Tom, I’ve spent plenty of time in the Upstate of SC: plenty of guys who call themselves rednecks and straight acting. It’s Lindsey Graham’s home turf. Greenville Spartanburg if slowly becoming more that factory towns between Charlotte and ATL. There are a lot of older white folks nostalgic for Jim Crow, and pretty much jonesing to be able to express their opinion of the gay members of the public.

  5. posted by Tom Scharbach on

    Tom, I’ve spent plenty of time in the Upstate of SC: plenty of guys who call themselves rednecks and straight acting. It’s Lindsey Graham’s home turf. Greenville Spartanburg if slowly becoming more that factory towns between Charlotte and ATL. There are a lot of older white folks nostalgic for Jim Crow, and pretty much jonesing to be able to express their opinion of the gay members of the public.

    I understand. I used the example because (1) it is preposterous on its face, and (2) it illustrates (because it is a “symbolic action”) the motivation behind the conservatives making an enormous storm out of the handful of Christian bakers, florists and photographers who suffer heart palpitations and intestinal distress whenever they think about a same-sex wedding. It is all show, and the purpose of it all is to send the message that gays and lesbians are lesser beings that straights.

    If Stephen and the rest of the supposedly “libertarian” gang (Olson, et al) had even a miniscule level of concern for religious free exercise or freedom of speech in “expressive services” situations, the discussion would not be carefully limited to same-sex marriage.

    I’ve not seen any of them — not once — discuss/support religious/conscientious objection to any other form of marriage. That’s the tell.

    • posted by Tom Scharbach on

      It looks like “parody marriage” bills is becoming the new black, orange, or whatever this year in Christio-Republican politics.

      As goes South Carolina, so goes Wyoming, apparently. I’ll bet Christio-Republicans in a half-dozen other states jump in before the fever has run its course.

      Its always fun to watch Christio-Republicans play in the anti-gay sandbox. Morons.

      • posted by Kosh III on

        You beat me to it Tom but here’s a link to the South Carolina nonsense being pushed by Conservative/GOP/Teanuts. I’m sure the self-hating homocons will be all in favor.
        https://thinkprogress.org/south-carolina-parody-marriage-3f71c518ca25/

      • posted by Tom Scharbach on

        The “parody marriage” bills (universally titled “The Marriage and Constitution Restoration Act”) are becoming quite the fad. I’m sure we’ll see more of them introduced in the next month or so. All of them are cookie-cutter — the Wyoming bill, for example, is identical to the South Carolina bill. I wonder who published the prototype? The bills are too well-written for the morons introducing them to have written themselves.

        Like the idiocy over “expressive services”, the bills are intended to make a statement rather than achieve a meaningful result. Both the South Carolina and Wyoming bills were tabled by leadership and won’t make it to a vote.

  6. posted by Jorge on

    This, by the way, differs from the situation in 2015 involving County Clerk Kim Davis in Kentucky, where she would not allow anyone in her office to issue same-sex marriage certificates, including clerks who had no issues with doing so.

    Only before she was held in contempt of court and decided to bend the state law and devise her own reasonable accommodation unilaterally. This magistrate was not her own boss and needed to rely on other people to bend the rules for her.

    It’s really the same thing, people in positions of bureaucratic power who don’t want to take responsibility for bending the law when they are required to do so by law in order to meet their duties toward personnel and public. The reasons why are obvious to a cynic, mind-boggling to an idealist.

    Allowing individual magistrates to opt out as long as no couple is denied a prompt marriage takes things a bit further, but if no couple is harmed I don’t see a problem. It’s akin to not making religiously observant employees work on the sabbath.

    Pretty much, though I would caution that the failure of the employer was a failure to consider and offer any accommodation at all.

    My office deals with reasonable accommodation cases in which workers aren’t given field work for disability reasons. It’s a huge pain because field work is such a major part of the job, and quite frankly some workers milk it, but because it is possible to move people around such that those few workers can be assigned to their other duties, we have to do it.

    What is this little bitty magistrate and her insignificant work on marriage cases in comparison? Especially since at the government level you have not just federal law, but constitutional law in play.

  7. posted by Jorge on

    What We, the People are forced to pay taxes for should be available to ALL. And anyone who takes a job with the government is a public servant. If he or she refuses to do the job, then that person should be fired.

    Well then, Champion Libertarian, at any time you are free to repeal the Civil Rights Act that prohibits employment discrimination on the basis of religion and disability, and the First Amendment which prohibits employers from granting stronger employment protections for disability than they do for religion. Until then, quit your bellyaching and follow what the law requires.

    What ever happened to the days when government officials were expected to perform the duties of their offices, or find another job?

    Women decided they were tired of getting fired for getting pregnant.

    • posted by Lori Heine on

      Jorge, you are dragging in something that no necessary connection.

      The contention made in this post is that we should pay taxes for services that may be denied us if the (tax-paid) civil servants decide they don’t want to do their jobs.

      Tom is right. You’ve got that power-shovel going full blast, and you’re determined to dig your way right down to the magma.

      • posted by Jorge on

        Let me see if I understand this correctly, Lore Heine.

        You believe that because each individual pays taxes for public services that they receive as members of the public, each individual public servant must carry out the direct provision of public services to each individual upon a lawful application for public services. It is important for any particular public service to be available to all people. Is this a reasonably fair statement?

        It seems to escape your notice that 1) public servants also pay taxes, and 2) their supervisors are also public servants. Therefore by your reasoning, each individual public servant must carry out the direct provision of public services to each individual subordinate public servant upon a lawful application for public services.

        The US Constitution prohibits the government from denying marriage benefits to couples on the basis of their sexual orientation. The US Constitution and federal civil rights law also prohibit the government from denying employment benefits to individuals on the basis of their religion. You, who profess to be concerned with equal enforcement of the law, would purport to pick and choose which of these laws shall be obeyed and which shall not be obeyed by public servants.

        I do not take your position seriously and I will not pretend that it deserves any attention more serious than ridicule.

        • posted by Lori Heine on

          If their “religion” requires them to refuse to do their jobs whenever the whim strikes them, then they should not have those jobs. Government is not private enterprise.

          Taken to its logical conclusion, everybody in public service could decide that everything they were called upon to do violated their “religion” and the whole works would shut down.

          That would be fine by me. We don’t need most of what government does, anyway. But it seems pretty stupid as a general principle.

          Where do we draw the line? The fact is that I would not be permitted to turn bigots away if I worked for the government, simply because I regard bigotry as a sin.

          These people are trying to drag government in to settle a religious dispute. That is their true purpose.

          And whether you “take that seriously” or not is of no concern to me. I don’t give a blast of gnat flatulence about what you do or do not take seriously.

        • posted by JohnInCA on

          The US Constitution and federal civil rights law also prohibit the government from denying employment benefits to individuals on the basis of their religion.

          Incorrect. That’s just the CRA, not the constitution.

          As to the rest, you’re confusing the CRA’s requirements for reasonable accommodations with a mandate. If I’m hiring someone to be a night and weekend supervisor, I’m not going to hire an observant Jew who refuses to work Friday nights and Saturdays. If I’m hiring someone for the assembly line at my pork-packing plant, I’m not hiring a Muslim who won’t handle pig flesh. If I’m hiring someone to officiate non-religious marriages at my county clerk office, I’m not going to hire someone that refuses to officiate certain marriages based on their religious beliefs.

          Non-discrimination law, even for the government, is not a mandate to make all jobs open to all people. It’s a mandate to make a good faith attempt to not be arbitrarily discriminatory. But when there are bona fide irreconcilable conflicts? I’m not gonna pay you to sit in a chair and say “I would work, but my religion is flaring up again”.

          • posted by Jorge on

            As to the rest, you’re confusing the CRA’s requirements for reasonable accommodations with a mandate. If I’m hiring someone to be a night and weekend supervisor, I’m not going to hire an observant Jew who refuses to work Friday nights and Saturdays. If I’m hiring someone for the assembly line at my pork-packing plant, I’m not hiring a Muslim who won’t handle pig flesh. If I’m hiring someone to officiate non-religious marriages at my county clerk office, I’m not going to hire someone that refuses to officiate certain marriages based on their religious beliefs.

            Those are some bad analogies. It’s like saying a Muslim can’t expect to work for Tyson’s because they can’t handle pork. But Tyson’s packages not only pork, but chicken and beef, too. And what wacko planet do you live on that you ignore the ability to assign a “weekend and night supervisor” to a 40-hour, Sunday through Thursday shift?

            You’re trying to change the facts to fit the results you want, and because it’s not working the way you want it to, you’re trying to change the employment contract ex post facto to fit the hiring result that you want rather than the actual duties of the position. It doesn’t work that way, and I don’t fall for such trickery. There’s a word for what you’re advocating for. It’s called discrimination, and it’s illegal.

  8. posted by Tom Scharbach on

    Tom: What ever happened to the days when government officials were expected to perform the duties of their offices, or find another job?

    Jorge: Women decided they were tired of getting fired for getting pregnant.

    Apples and jerky, Jorge (not close enough to use apples and oranges). Reboot the thought process.

    • posted by Jorge on

      I fail to see the problem. Pregnant women are protected from employment discrimination under the federal civil rights. So are Christian women, through the exact same method: reasonable accommodations.

      What’s really going on is that you are saying that you don’t like Christian women, while pregnant women are a sacred apple. That is a legitimate personal belief for you to hold. But the people who are charged with executing and upholding the laws of this country cannot allow such personal beliefs to bias their decisions.

      You’re a lawyer, I believe. I think you should explain how you would expect an employer to handle the reasonable accommodation offer from the magistrate in question.

      • posted by Jorge on

        “the federal civil rights” >> the federal civil rights act.

  9. posted by Tom Scharbach on

    I think you should explain how you would expect an employer to handle the reasonable accommodation offer from the magistrate in question.

    Reassignment to another job which does not require the magistrate to perform marriages. Case law is reasonably clear that the government is under no obligation to accommodate an employee’s refusal/inability to perform a fundamental duty of the position in question.

    What’s really going on is that you are saying that you don’t like Christian women, while pregnant women are a sacred apple. That is a legitimate personal belief for you to hold. But the people who are charged with executing and upholding the laws of this country cannot allow such personal beliefs to bias their decisions.

    Blither on. I love it when you dig your hole with a power shovel.

    • posted by Jorge on

      Reassignment to another job which does not require the magistrate to perform marriages.

      *Facepalm.*

      Isn’t… that… what… happened?

      Case law is reasonably clear that the government is under no obligation to accommodate an employee’s refusal/inability to perform a fundamental duty of the position in question.

      So let me see if I understand this correctly.

      1) You can outright fire someone because “We don’t even have another job we can reassign you to”. 2) If you do have another such job, you have to grant the accommodation.

      Then it seems to me that when 3) The accommodation request presented by your employee is for another shift, 4) You’re triple ****ed.

      And I suppose that’s how the magistrate won, by proving marriage was not a fundamental duty of her contract, merely something she is empowered to do. As demonstrated by the fact (?) that another available shift in her identical position doesn’t even perform that function. Or as an analogy, I can sign transportation requests, but if I don’t sign my name to transport a child to have an abortion, I can say no and have a designated substitute do all transportation requests instead.

      All of which is to say, I’d fire her just for the goddamned hassle she’s putting me through as a supervisor. But that is illegal.

    • posted by Jorge on

      …..
      hmm…

      Although I must admit that you answered with what I was really looking for: a counteroffer.

    • posted by Tom Scharbach on

      Just keep digging the hole, Jorge.

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