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« Free Exercise and Same Sex Marriage: A Response to Mike Dorf | Main | To Hell with Conflict Resolution »

10/14/2011

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Clark West

I am fascinated by this disagreement between you and Dorf. My question has to do with where one draws the line in allowing accommodation. If the clerk is truly a fundamentalist Christian, she might well believe, following Mt. 19:9, that it would be wrong for her to issue a marriage license to a person seeking a second marriage (adultery in Jesus' view). Or if, as is entirely likely in a small town, the clerk knew that a couple coming before her for a license had no intention of being monogamous, could she also be accommodated for her refusal to issue the license? (again, assuming that her assistant clerk would be 'a reasonable alternative' for her to delegate to?) How would the law adjudicate when she was engaging in a purely idiosyncratic reading of what her God required, when, that is, her 'extreme' was too extreme even for the law to countenance with accommodations? What if her religion held that true marriage can only be legal if it is also in coherence with her view of the law of God, such that mixed religion marriages, etc., were ruled out?
I am guessing you have a line beyond which you would not favor accommodation, but I am not clear where that is and how you articulate it legally.

David Nickol

I find curious the notion that an elected official can relieve herself of responsibility for signing same-sex marriage licenses by assigning the task to a subordinate. As I understand it, as the elected Town Clerk, Belforti is responsible for marriage licenses. This is not a task delegated to her by the Town Council, but is a task she owns by reason of having been elected Town Clerk. I do not know the exact details of how a Deputy Town Clerk is hired, but I can only assume the Deputy Town Clerk is supervised by the Town Clerk, and the task of signing marriage licenses is delegated by the Town Clerk to the Deputy Town Clerk. It is one thing for a worker to refuse to do a task and for that person's supervisor to reassign that task to someone else, but how can a person claim not to have moral responsibility for a task she delegates to a subordinate? Belforti is responsible for the work she delegates to her deputy.

I am not sure how much the morality of the position affects the legality, but assigning work to someone because you believe it is immoral and don't want to dirty your hands doing it yourself is not, in my mind, a morally respectable position. To make a conscience claim, I think a person has to justify himself or herself, not merely say, "My conscience tells me not to do this." If the housekeeper you hire says, "I don't do windows; it's against my conscience," do you have to say, "I'll get somebody else to do them. I don't want to violate your civil rights"?

Steve Shiffrin

CRW, I do not think I need to draw a line. I think so long as the
religious belief is sincerely held, it is a candidate for accommodation
(though no reasonable accommodation may be available). I think detrming
which religions are reasonable and which not raises Establishment
Clause issues that are best avoided.

Steve Shiffrin

David
We disagree about a fair amount here.
I think it possible that the degree of involvement with what the clerk
regards as evil could make a moral difference to someone. The Clerk has
a moral responsibility for the delegation, but delegation might be
regarded as less serious than participation in the act of recording.
In any event, I think the free exercise clause protects postions that
are not morally respectable. Indeed, I do not think that opposition to
same sex marriage is morally respectable. Finally, I do not agree that
conscience claims need to be justified. The question is whether the
claimant can establish sincerity, not whether the claimant can
establish that the claim is respectable.
Steve

Clark West

Steve,
So then you would make an accommodation for the clerk who articulated with religious sincerity that their God would not allow them to issue a license for a mixed marriage or an interracial marriage so long as the accommodation was reasonable (the deputy clerk was at hand and willing?)

Steve Shiffrin

Yes. I think it would be possible to argue that race discrimination is
particularly iniquitious in light of our nations history, but I think
giving accommodations to all offensive religions is better than having
to explain to gays why racial discrimination is offensive enough not to
deserve accomodations, but discrimination against gays is not.

David Nickol

Steve,

So you are saying that a position of conscience that makes no sense, or strikes virtually everyone is patently absurd, still requires "reasonable accommodation" if the objector can convince people of his or her sincerity?

I was once reading Richard Fortey's book Life: A Natural History of the First Four Billion Years of Life on Earth, and I had a fleeting but quite genuine pang of conscience about killing the mold that keeps trying to grow in my shower. Molds are extremely ancient and fascinating life forms, and when I was reading that book, it seemed awesome to me that they were growing right there in my bathroom. Suppose instead of being fleeting, that impression of awe and respect for molds had stuck with me, and I had a job as, say, a janitor and invoked a right of conscience not to kill molds. Would I be entitled to reasonable accommodation?

Steve Shiffrin

David, so long the belief gives rise to a sincerely held religious obligation, it should be accommodated. Any other view allows government to discriminate against unpopular religions.

Jimbino

How about solving the problem by requiring that the clerk act on the marriage certificate application without being informed of the sex of the applicants?

Does race of the applicants appear on the application? NO; too bad for the religious fanatic who won't marry folks of the wrong races!

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