As always, before reading this post, please review my disclaimer by following the link above, or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
Once a staple of this blog, I discovered today that I haven't done a true Legal FAQ since February of last year! As with my previous FAQ's, today I will answer questions that I am frequently asked by friends, family, clients and others, but which, in my opinion, don't really warrant a full blog post of their own. As you will see, one topic from the news has been dominating my discussions with people who have these kinds of questions lately, so it will also be dominating this FAQ. You can find my previous FAQ's here:
FAQ Part I
FAQ Part II
FAQ Part III
FAQ Part IV
Why was it constitutional to jail Kim Davis?
This is the question I've gotten from non-attorney friends the most recently - and not surprisingly. In case you've been living under a rock, Kim Davis is the county clerk in Kentucky who refused to issue marriage licenses because if she did so, she would have to issue them to same-sex couples, and doing so violates her religious beliefs. A federal judge said that her religious beliefs do not allow her to refuse to do her work duties and ordered her to resume issuing licenses. When she refused, she was sent to jail for contempt of court.
Here's the thing - when someone works for the government, they act as an arm of the government while they are working. If your religious beliefs prevent you from performing your duties as a government official, you simply cannot hold that title. You have a right to believe whatever you want, to worship who you want and how you want, but you do not have a right to impose that belief on others, and when you are in a position of power in the government, that generally means you cannot use your own religious beliefs in a way that prevents you from providing services to the public. As such, Ms. Davis had no right to withhold those licenses - she needed to either resign, or issue the licenses. When she refused, she was correctly jailed for contempt. It would be the same result for, say, a conservative Muslim DMV clerk who didn't want to issue driver's licenses to women, or an Orthodox Jewish SBA employee who didn't want to approve loans to businesses that would be open on Saturdays.
Now, unfortunately, a lot of misinformation out there has caused this case to be compared to a recent Supreme Court opinion in which Abercrombie and Fitch was found to have discriminated against a Muslim woman because they wouldn't hire her since she couldn't abide by their employee dress code. This is a false comparison for a wide variety of reasons. First, the issue in front of the Supreme Court was largely unrelated to the underlying issue - Abercrombie actually essentially admitted they discriminated, but claimed that because they'd only guessed she was Muslim (rather than her having actually told them that she was) then the relevant federal civil rights law didn't apply. The Supreme Court (in my opinion correctly) said that argument was ridiculous. Now, on the broader law, federal civil rights laws say that it is religious discrimination not only if a company refuses to hire someone solely because of their religion, but also if the company refuses to hire someone or fires someone because the practice of their religion conflicts with the policies of the employer, so long as it is possible to reasonably accommodate the employee's practices.
So, you not only can't refuse to hire someone because of their religion, you also must allow them to practice their religion so long as doing so would be reasonable. So, what is a "reasonable accommodation"? Generally speaking, this is something where it would not particularly burden the employer or hurt the company to accommodate the practice. What is generally not seen as a "reasonable accommodation" however is changing one of the core functions of the job. In the Abercrombie and Fitch case, most people agreed that adhering to the employee dress code was not a core function of the job, and that accommodating the woman by allowing her to wear a head scarf was not a substantial burden of any kind. In other cases, however, it has been held to not be discrimination to, say, require people to work on certain religious holidays (so long as certain pre-conditions are met), to require Muslim waiters/waitresses to serve alcohol, and other actions where, again, one of the core functions of the job is involved.
Now, it's important to note first of all that these laws apply to private employers. Government employers actually have more flexibility in how they treat their employees because there is special consideration given to the fact that the employees speak for the government. Nonetheless, even if the government were treated the same way Ms. Davis would not fit into the discrimination category. Why? Kentucky law requires all court clerks to issue marriage licenses, and court clerks are the only people who issue marriage licenses in Kentucky. To that end, accommodating Ms. Davis would be doubly unreasonable - issuing licenses is a core function of her job, and failing to issue them substantially burdens the citizenry since they'd have to leave the county to get a license elsewhere.
Ultimately, I'm reminded of the quote of a constitutional law professor in Maryland some years back: "People place their hand on the Bible and swear to uphold the Constitution; they don't put their hand on the Constitution and swear to uphold the Bible." The moment Ms. Davis became a government official, she surrendered the right to use her religion as a basis to defy the law. Her proper course of action was to resign. When she failed to do that, the court did what it needed to do.
Is the Dred Scott decision really still the "law of the land" but just ignored by politicians and courts?
I had hoped my missive about Kim Davis would be all I'd need to write on this topic, but yesterday a completely bone-headed comment by presidential candidate Mike Huckabee caught my attention and led to more questions. In his quest to argue that the Supreme Court really doesn't have the "final say" in what is and isn't constitutional, Huckabee argued that the infamous Dred Scott decision of 1857, which declared African-Americans to be less than human, and subsequently incapable of being citizens of the United States, is still the "law of the land" but is simply disregarded by courts and politicians today. I can confidently say, however, that Mr. Huckabee is dead wrong.
You see, out of all the things he gets wrong, Huckabee gets one thing right - the Supreme Court doesn't have the "final say" of what is and isn't constitutional. Now, it does have the final say over what is and isn't constitutional at the moment that the court considers the case - and that has been the case since 1804 - but as anyone who passed middle school civics will tell you, that's not the end. Congress and the states have the power to change the constitution by way of an amendment, and any Supreme Court opinion to the contrary prior to the passage of that amendment is then effectively overruled. While Dred Scott was the law of the land in 1857, literally every single thing that it held was overturned by the 13th, 14th and 15th amendments, which were ratified in 1865, 1868 and 1870 respectively. As a result, Dred Scott has absolutely not been the "law of the land" since at least 1870.
How does Kim Davis differ from a conscientious objector?
Sigh... Yep, not getting away from the Kim Davis questions, am I? Ok, this is another one I've been asked about a lot because Ms. Davis's attorneys themselves brought it up. They pointed out that we have a long history in this country of recognizing conscientious objection, and Ms. Davis should be treated the same. For those who don't know, a conscientious objector is someone who belongs to a religion that believes war, in all circumstances, is morally wrong, and who subsequently will not join the military, even in a draft. The most well known religious group holding this view is the Quakers.
Now, historically, the US has honored conscientious objection. When we have had drafts, there is quite an extensive review to go through to make sure it's an honestly held belief - not just an effort to get out of the draft - but if proven, conscientious objectors have been exempt from drafts. What's important to note, however, is that the courts held multiple times that the US is not required to honor conscientious objection. There are many good reasons to do so, but the next time the US has a draft, the Congress could very well decide "eh, we'll just draft everyone" and that would be perfectly allowed. However, there's a more important distinction here. Conscientious objection allowed people to not be put into a position where they would have to violate their religious beliefs to do their job - Ms. Davis is already in that position. A more direct comparison would be a Quaker who voluntarily joins the army, collects an army paycheck, obtains army benefits, and then refuses to be deployed - that simply would not be allowed.
So does anyone other than the courts get a say in what's constitutional?
So, in light of the above, you might be thinking that it's fairly clear cut that only the court's opinion of constitutionality matters. This couldn't be further from the truth. Beyond the power to amend, every single government employee has also taken an oath to uphold the constitution. While the Supreme Court may have the final say on what is and isn't constitutional as the constitution is currently written, the other branches of government still have to make their own analysis and, within limits, can act accordingly even if they disagree with the Supreme Court.
First of all, when the Court rules a law unconstitutional, it is unenforceable, period. But when the Court finds something constitutional, the law can still be repealed because members of Congress and the President disagree. Members of Congress can vote against a law they believe unconstitutional, and a President can veto a law he or she believes unconstitutional - in fact, I would hope that they would in such a situation. A President even has the power to refuse to enforce a law he or she believes unconstitutional, unless and until a court orders otherwise. In other words, the Supreme Court may have the "final" say, but it does not have the "only" say.
Final Thought
Today is a rough day for many people in this country. Fourteen years ago, the horrors of war and terror were brought to our shores. Yet, we also saw this country's ability to stand together as one. As political discourse gets worse and worse in this country, I simply pray that we all remember that we are all Americans - and that "same" is far more important than any of our "differents."
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