Giving Religious Liberty a Bad Name

      Religion and politics can be a combustible mix, but keeping church and state separate have helped the United States prevent the kinds of sectarian conflagrations seen in many nations around the globe. Justice Sandra Day O’Connor made that point when she joined the Supreme Court’s decision a decade ago to block the display of the Ten Commandments in a Kentucky courthouse.
      “Those who would renegotiate the boundaries between church and state must [ ] answer a difficult question,” O’Connor wrote in McCreary County v. ACLU (2005). “Why would we trade a system that has served us so well for one that has served others so poorly?"
      Today, the same impulse behind McCreary County’s decision to post religious laws in a secular courthouse can be seen in the scattered resistance in a handful of courthouses to recognizing same-sex marriages. Clerks and judges in 13 counties in three states — Alabama, Kentucky, and Texas — are claiming that their religious beliefs allow them, as government officials, to deny or at least disparage the constitutional right of gay and lesbian couples to equality before the law.
      The clerks and judges who are spurning same-sex couples insist that their rights are at stake in the conflict, not those of gay and lesbian couples. “I do not believe we have to check our religious beliefs at the door when we are elected,” Nick Williams, a probate judge in Washington County, Ala., remarked to CBS News correspondent Jericka Duncan.
      Williams has a petition pending before the Alabama Supreme Court seeking an order that would allow him to refuse to issue what the petition filed on Sept. 15 calls “a license to engage in sodomy.” Williams is in effect rejecting two Supreme Court decisions: the ruling in June striking down state bans on same-sex marriage and the decision in 2003 nullifying state laws against gay sex.
      Alabama Chief Justice Roy Moore signaled his intention months in advance of the Supreme Court ruling to defy any decision recognizing same-sex marriage. The Alabama court has yet to act on Williams’ petition; Williams’ attorney says an order would also protect the five other probate judges in the state who are refusing to license same-sex marriages.
      Meanwhile, Kim Davis, the defiant county clerk in Rowan County, Ky., is risking a second confrontation with a federal judge who sent her to jail for disobeying his order to issue marriage licenses to couples, gay or straight. U.S. District Court Judge David Bunning ordered Davis released on Sept. 8 on the condition that she not interfere with marriage licenses any further.
      Davis ordered the marriage licenses changed instead, with her name removed and a notation that the licenses were being issued under the authority of a federal court. Lawyers for the American Civil Liberties Union representing same-sex couples warn that the changes in the form cast doubt on the validity of the licenses.
      Whatever else happens in Davis’s case, she has succeeded mostly in giving religious accommodation a bad name. Earlier polls suggested that the public was closely divided on the somewhat analogous issue whether individuals such as bakers or photographers could claim a religious right to refuse to provide services to same-sex weddings. But a Washington Post-ABC poll released Sept. 15 found 63 percent of those surveyed said Davis should be required to issue licenses and 45 percent even supported her having been jailed for refusing.
      The modern era of religious accommodation began with the Supreme Court’s 1963 decision Sherbert v. Verner invoking the First Amendment’s free-exercise-of-religion clause to allow unemployment benefits to a Seventh Day Adventist  fired for refusing to work on Saturdays, the Adventists’ Sabbath. Significantly for the present context, Adell Sherbert was not seeking to be hired back. A year after the decision, however, Congress included in the Civil Rights Act of 1964 a provision giving employees a workplace right to reasonable accommodations of their religious beliefs.
      The Supreme Court scrapped the First Amendment test set out in Sherbert in the 1990 decision, Employment Division v. Smith. The ruling effectively blocked use of the Free Exercise Clause to gain religious accommodations from generally applicable laws. Congress responded three years later by restoring the previous test as a matter of statutory instead of constitutional law in the Religious Freedom Restoration Act (RFRA).
      RFRA was the basis for the Supreme Court’s controversial Hobby Lobby decision in 2014 allowing private employers to invoke religious beliefs in refusing a requirement to include cost-free contraceptives in employee health plan. In a dissent, Justice Ruth Bader Ginsburg noted that in previous decisions the Supreme Court said religious accommodations would not be allowed if they significantly affected third-parties’ rights.
      In the majority opinion, Justice Samuel A. Alito Jr. batted away Ginsburg’s warning that the ruling threatened enforcement of civil rights laws. But as the gay marriage cases advanced, many states moved to pass or strengthen mini-RFRAs for the precise purpose of allowing anti-gay discrimination.
      So far, the photographers and bakers are losing in courts or administrative agencies. The judges and clerks are stretching the religious liberty argument even further by claiming the right to turn gay and lesbian couples away at the courthouse door. The discord they have stirred up shows once again the wisdom of trying to keep religion and politics, church and state, apart.