Not All Religious Liberty Cases Are Black and White. Many Are Gray.
Ryan T. Anderson /
Sometimes religious liberty cases are black and white, but normally they’re various shades of gray and require careful critical thinking. They’re not so much a matter of arithmetic as they are geometry or even calculus.
That’s one of the lessons from professor Robin Wilson’s law review article, “The Calculus of Accommodation: Contraception, Abortion, Same-Sex Marriage, and other Clashes Between Religion and the State.” And it’s a lesson that should be applied in the case of the Salt Lake City police officer who asked to not be assigned to work the gay pride parade.
The officer “said he was ‘uncomfortable’ with the assignment to ride ahead of the Utah Pride parade.” When he asked to be reassigned to a security or patrol position he was placed on paid administrative leave. According to a statement from his lawyer, “The officer simply felt that the level of participation required in the event could be perceived as endorsing or advocating in favor of the LGBTQ community, a position which made him uncomfortable given his personal and religious beliefs.”
Of course everyone deserves the protection of the police department. And of course an officer on patrol can’t pick and choose which calls to respond to. But to affirm that everyone deserves the protection of the police, and that all officers must respond in emergencies, does not necessarily require every police officer to accept every assignment. Indeed, government must accommodate conscientious objectors as best it can.
This isn’t black-and-white arithmetic; it requires attention to particulars and various balancing acts that are contained in specific laws that govern employment.
One of these laws is Title VII of the Civil Rights Act of 1964, which applies to all employers, including the federal government, and requires that employers grant reasonable religious accommodations to employees, provided those accommodations don’t create an undue hardship for the employer, such as a police department. Beyond Title VII, there is the federal Religious Freedom Restoration Act and state versions of RFRA that prohibit government from substantially burdening religious exercise unless there is a compelling governmental interest, pursued in the least restrictive manner possible to achieve that interest.
All of this is to say that religious accommodation law in the public employee context is incredibly complicated. But at National Review Online, Charles Cooke tries to paint it as a simple matter. Cooke writes:
This is pretty simple. If your salary is paid for by taxpayers, you don’t get to decide for which of them you will work. Firefighters cannot opt out of putting out fires if the house is owned by an atheist or a gay couple or a family with particular religious or political views. The DMV cannot decide that it will not serve tall people who, like everybody else, are forced to use it. The president of the United States cannot refuse to execute the laws if he likes or doesn’t like those they will affect. And the police cannot refuse to protect the KKK or a gay pride parade. If one is forced to use and fund a service, it needs to have rules that treat everybody equally. Don’t like it? Don’t take a job with the government.
The argument in favor of ironclad conscience protections in the private sector is clear. I myself am a staunch advocate of it. But it is nonsensical to apply it to the public sector. This matters. Let’s not get confused.
This isn’t quite right. As Prof. Wilson notes, “A common refrain is that religious objectors in government service should do all of their job or resign. This stance conflates the public receipt of a service offered by the state with the receipt of that service from each and every employee in the office who is available to do it.” In other words, citizens have a claim to receive certain “services from the state, but they do not necessarily have a claim to receive the service from a particular public servant.”
Yes, the fire department, the DMV, the executive branch and the police department need to provide their services to all citizens. But not every employee of those agencies needs to provide every service at every time. Again, there are multiple laws that make this clear.
Prof. Wilson in an earlier law review article provides an example of a police officer being offered a “reasonable accommodation” for Title VII purposes:
In Rodriguez v. City of Chicago, for example, a Catholic Chicago police officer, Angelo Rodriguez, requested a reassignment after being posted at an abortion clinic in his district. Officer Rodriguez expressed willingness to serve in the event of an emergency breach of peace at the clinic but asked not to be assigned active duty at the clinic since it would violate “religious beliefs . . . that prohibit [his] participation in keeping abortion clinics open.” The Rodriguez court noted that “[u]nder Title VII . . . an employer must reasonably accommodate an employee’s religious observance or practice unless it can demonstrate that such accommodation would result in an undue hardship to the employer’s business.” Indeed, the court ultimately ruled that the city’s offer to transfer Rodriguez to a district “comparable to [his own] but without abortion clinics,” with “no reduction in his level of pay or benefits,” was “a paradigm of reasonable accommodation.”
This does not mean that every employee is entitled under Title VII to the accommodation that Rodriguez got pursuant to his union contract, nor that a religious objector will always win. Sometimes courts may say there is no burden on the employee. Sometimes the employee may turn down a reasonable accommodation (as Rodriguez did), or there might be no reasonable accommodation available. Employees can lose in so many ways. There is no reason to think either that religious objection is an unfair trump card or that religious objections never should be accommodated. Our law demands a careful—and possibly complicated—balancing of interests.
So, what does all of this mean for the police officer in Salt Lake City? It is clear that the police department must protect the peace at the gay pride parade. And it is clear that if the officer was on patrol and violence broke out he would have to respond to it. But must the officer accept an assignment ahead of time to work at the parade? There is no simple clear-cut answer. It depends on whether the type of involvement he was asked to have with the parade violates his religious beliefs. It depends on whether other officers were available to be assigned to the parade in his place. It depends on what sort of a workable precedent and procedures the department could establish to handle these sorts of concerns.
In other words, Prof. Wilson is right: It is calculus.