09/11/2015 05:05 EDT | Updated 09/11/2016 05:12 EDT

The Kim Davis Debacle Exposes the Limits of Religious Liberty

Rowan County Kentucky Clerk Kim Davis speaks to a gathering of supporters during a rally on the steps of the Kentucky State Capitol in Frankfort Ky., Saturday, Aug. 22, 2015. Davis spoke at the rally organized by The Family Foundation of Kentucky on Saturday afternoon. The crowd of a few thousand included churchgoers from around the state. Davis has been sued by The American Civil Liberties Union for denying marriage licenses to gay couples. She says her Christian faith prohibits her from signing licenses for same-sex couples. (AP Photo/Timothy D. Easley)

Recently, a county clerk in Kentucky, Kim Davis, claimed that her "conscience will not allow" her to issue marriage licenses to same-sex couples because "God's moral law convicts me and conflicts with my duties." In late August, a Calgary a bus driver named Jesse Rau refused to drive the Calgary Transit's rainbow bus. Both individuals raised religious objections.

These are interesting normative positions. Can an individual refuse to obey a law if it conflicts with their personal interpretation of a religion? Does it matter if the individual is an elected official or a private citizen?

To sort this out, let us engage in a thought experiment. If as some have said, this is a fight worth fighting, we would like to see if there is a system of government that could grant to its citizens authority to act or not based on their individual interpretation of their religion. In order to do this we need to examine the way government operates while taking into account laws designed to protect religious freedom -- in Canada, the Charter of Rights and Freedoms and various human rights legislations, and in the United States, Title VII of the Federal Civil Rights Act and the state Religious Freedom Acts.

No specific accommodation would be required for religion if the starting point is a governmental structure that was religious in nature. By placing a singular religious doctrine over the structure of government, a religious state would start with the religious dogma.

For example, since Ms. Davis appears to be espousing Apostolic Christian beliefs, let's assume that Canada is an Apostolic Christian state. Since the religion would determine the mores of the government presumably, there would be no same-sex marriage and Ms. Davis would not be confronted with her moral dilemma.

But this would not convey the whole picture. Assume, for example, that the Apostolic Church of Canada decides that television watching is allowed, but the county clerk would have to issue a license. Let us further assume that Ms. Davis subscribes to a minority position, which held that televisions are totally prohibited. If Ms. Davis was going to act on her conscience, then she would have to refuse to do her job because of her individualized interpretation. Therefore, even in a religious state governed by her religion, she may encounter similar dilemmas.

Let us now turn to a secular context where the premise is that the governmental structure is above the rule of religion. The government makes rules but then accommodates various religious doctrines.

In the Unites Sates, Title VII of the Civil Rights Act of 1964 -- which prohibits discrimination in employment based on religion -- requires some (little) accommodation, but nothing that is too disruptive. In Canada, various jurisdiction specific human rights legislation and the Charter arguably provide for more robust protection, requiring accommodation of the religious viewpoint to the extent of undue hardship.

If Ms. Davis or Mr. Rau are correct and our individual beliefs are above the rule of law, then the government would not be able to operate. For the sake of argument and to make the point, let us make a Quaker the head of issuing firearm permits, a Muslim the head of issuing liquor licenses and a Jewish person in charge of issuing tattoo parlor licenses. If they each adhered to their respective mainstream teachings then they would be unable to execute their jobs. Secular government only functions by the ability of the people collectively to govern. The individualized religious differences are subsumed by what is seen as the collective public good.

But more than that, Ms. Davis' position is that her individual rights are paramount to the group. She wants to be allowed to decide how to implement the law based on her own view of religious doctrine -- not necessarily the official position of the religion. This is even more troubling than an accommodation for the religion, because it would bring government to a complete standstill. Any law an individual did not want to obey would become unenforceable. Unlike a religious state, Ms. Davis is arguing for this individualist interpretation of religious dogma.

Her position is reminiscent of a case the U.S. Supreme Court heard in the early 1990s Members of the Native American Church would use peyote as part of their religious practices. The members were fired for their drug use and then denied unemployment benefits. The members claimed that this denial violated their First Amendment free exercise of religion. The U.S. Supreme Court concluded essentially that making an "individual's obligation to obey such a law contingent upon the law's coincidence with his religious beliefs," would mean "permitting him, by virtue of his beliefs, 'to become a law unto himself[.]'" This "contradicts both constitutional tradition and common sense." And if we do adopt this type of rule it "would lead towards anarchy."

Ms. Davis' argument that she should not issue marriage licenses because of her religious belief fails for the same reasons. A government that allows for laws to be subject to individual interpretation of their religious beliefs would in short order become untenable. This of course does not excuse the government from working to accommodate such views in a similar fashion to the conscientious objector exemptions and substitution of duties found in many military situations. In Ms. Davis' case, she refused attempts at accommodating her.

Mr. Rau, on the other hand, under the Canadian system may have more freedom. According to the Supreme Court of Canada, religious accommodation "is about freely and deeply held personal convictions or beliefs connected to an individual's spiritual faith and integrally linked to one's self-definition and spiritual fulfillment." But that does not mean that all beliefs are accommodated. For example, if one only works on Sundays, that does not meet the religious accommodation test. Moreover, the fact that he is in a different position vis a vis implementing the law makes his situation not disruptive to governance.

In order to have a functioning government, whether religious or secular, it requires individuals to be subject to the institutional directives of the decision makers. The reason we cannot accommodate Ms. Davis' beliefs is because no government could function if each citizen could decide whether to follow the rule of law based on their personalized belief structure. The decision to hold Ms. Davis in contempt has nothing to do with religion or her beliefs, and everything with the rule of law. We can accommodate religion, but not at the expense of governance being held hostage.

David J. Herzig is a professor of law at Valparaiso School of Law and Faisal Kutty is an associate professor of law at Valparaiso School of Law.


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