Where the First Amendment ends and tolerance begins

Rights

What does a county clerk in Kentucky who won’t issue gay couples marriage licenses have in common with a flight attendant who won’t serve passengers alcohol?

Answer: a case of acute confusion about where civil rights, religion, and professional responsibility connect.

In a democracy—where we hope every person can fulfill his or her true, authentic self—it is getting harder and harder to know when personal belief and public duties ought to be the same or differ.

Kim Davis has a First Amendment right to believe that her duty to God prevents her from issuing marriage licenses to gay couples, just as Charee Stanley has the right to believe her duty to God prevents her from serving alcohol to flight passengers.

However, according to the June Obergfell v. Hodges decision by the United States Supreme Court, it is a gay couple’s right to get married. In Louisville, Kentucky, the county clerk’s mandate is to issue those licenses. Davis is the county clerk; it is her job to issue marriage licenses to the couples who come before her.

And according to the laws governing commerce, it is the right of the airline to offer alcohol to passengers, and it is the right of all adult passengers who are not visibly inebriated to purchase alcohol when it is offered for sale. As a flight attendant, it is Stanley’s job to serve her passengers alcohol—and it is her fellow employee’s right to expect that work rules should apply equally.

Choice and consequence

Davis and Stanley made important choices, the former as a Christian and the latter as a Muslim. Both made the choice to convert to their respective religions in adulthood, after entering their current jobs. Conversion is not a lightly taken experience; our First Amendment right to exercise religious beliefs celebrates choices such as these.

Both also chose to allow religious proscriptions, as they understand them, to prevail over workplace obligations.

When Martin Luther King, Jr. and others in the Southern Christian Leadership conference engaged in civil disobedience, their objective was “the normalcy that recognizes the dignity and worth of all God’s children.” Is this what Davis and Stanley are doing? Are they acting on behalf of individual rights for everyone? Are they climbing the mountain of social justice?

No.

Sometimes, a job is a job

Kim Davis is employed to provide a service. Her duties are distinctly public ones, all the more significant because she is an elected official; she serves the public by grace of her constituency, representing the public interest as expressed by law. On her election, the Morehead (KY) News, captured her commitment, as she enthused, “I will be the very best working clerk that I can be and will be a good steward of their tax dollars and follow the statutes of this office to the letter.”

Then the statutes changed. But instead of adhering to the job description by which she specifically agreed to abide, Kim Davis instead chose to use her position as a forum, to amplify her distaste for gay marriage.

Charee Stanley is also employed in a service-oriented business. Flight attendants spend a lot of their time attending to others. Having discovered that her newly adopted religion prohibits the serving of alcohol, she relied on coworkers to fulfill the requirements of her job.

But is it Stanley’s right, as a matter of belief, to demand that her colleagues do her work? Is she constitutionally protected to keep her job without having to make a personal compromise?

Again…no.

Pick and choose

Why can’t Davis and Stanley opt out of the parts of their jobs that they don’t approve of? After all, religious organizations in the United States do get a variety of tax exemptions and essentially operate under a totally different tax scheme.

But there is no such thing as a religious license for individuals to discriminate. The First Amendment protects Davis and Stanley to assemble, rally, write pieces for blogs like this one, and have any opinion they want, but it does not provide them with an “I’ll serve everyone, except those people” exemption.

So, what next?

The law is always evolving. If left unchallenged, the August 31 ruling in March for Life v. Burwell, one of several challenges to the Affordable Care Act’s so-called “contraceptive mandate,” will allow members of nonreligious organizations to claim exemptions from the law based on their moral feelings. And both Davis and Stanley will have their days in court until the appeals process is exhausted.

But imagine a flight where the gluten-free movement demands new rules for airline food and the movie menu offends everyone; or a restaurant where vegans won’t sit next to meat eaters, the cigar-smokers demand recognition, and obesity is criminalized.

Everybody is outraged about something. At day’s end, a little tolerance is necessary.

The views and opinions expressed here are those of the author and do not necessarily represent those of Avvo.

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