The Alliance Defense Fund and More Special Rights

The Alliance Defense Fund (ADF) is an anti-gay legal group disguised as protectors religious liberty. They believe government employees should be able to pick and choose which laws to follow based on their religious beliefs (as long as those beliefs are Christian).

Naturally, they think it’s perfectly reasonable for Town Clerks in New York to hold on to their jobs while refusing marriage licenses to qualified, law-abiding citizens (as long as those citizens are gay).

The ADF even offers up a legal rationale for this, based on New York state law.

Thus, as explained below, municipal clerks who have a sincerely held belief that prevents them from issuing marriage licenses to same-sex couples have the right to request an accommodation from their governing bodies.

New York law requires an employer to accommodate an employee’s religious observance or practice, “unless, after engaging in a bona fide effort, the employer demonstrates that it is unable to reasonably accommodate the employee’s or prospective employee’s sincerely held religious observance or practice…without undue hardship.” Executive Law § 296(10)(a). This law “represents a legislative expression of the high value that our State places on supporting and protecting [religious diversity] and in prohibiting invidious discrimination based on religious choice The statute ensures that no citizen will be required to choose between piety and gainful employment, unless the pragmatic realities of the work place accommodation impossible.” New York City Transit Auth. v. State, Exec. Dept., Div. of Human Rights , 89 N.Y.2d 79, 88 (N.Y. 1996).

Well, the law’s the law. Except…is that the law? Or a reasonable interpretation of it?

The law is about “religious observance or practice.” What does that mean? Check the law’s wording, which refers to:

…a sincerely held practice of his or her religion, including but not limited to the observance of any particular day or days or any portion thereof as a sabbath or other holy day in accordance with the requirements of his or her religion.

This seems to be about not making people work when their Sabbath says they should rest. About letting people leave work to attend religious services. It’s probably also about letting people pray at work, as Muslims need to do at regular intervals, and letting people wear religious clothing like a burqa or yarmulke (that’s the “including but not limited” portion).

Am I being too narrow?  Again, check the law. It goes into detail, and those details are all about people taking time off for religious observance.

But wait! you cry, ADF didn’t just cite the law, they cited a court case, too! True enough. Let’s check that case — that one case, presumably the best case they could find — and discover it’s about…

…the right of a Seventh Day Adventist not to work on her Sabbath Day.

Yeah. The ADF isn’t bolstering their plea for a broad, broad, broooooad application of the law. I’m not an attorney, so I’ll appeal to the lawyers out there: Has any court interpreted this statute as a right to discriminate?

Let me be more specific:

Has any court interpreted “religious accommodation” law in a way that permits a public employee to complete a task for one group of legally-qualified, law-abiding citizens while refusing to do so for another such group?

If so I’d love to see it. Until then, I have to ask once again, who’s asking for special rights here?

  • Digg
  • Facebook
  • email
  • Reddit

5 comments to The Alliance Defense Fund and More Special Rights

  • 1
    Dave says:

    I can’t speak as to New York law specifically, but in the related area of First Amendment cases regarding free exercise, the courts are very clear to distinguish religious activities from non-religious activities by religious organizations.  In general, a church or a person’s religious activities are protected completely… how they worship, their right to believe what they believe, and the like.  But the court also recognizes that religious actors sometimes engage in secular behaviour, and in those cases a religious actor is just as bound by religion-neutral regulations as anyone.

    The courts usually offer pretty mundane examples: church bake sales are regulated by health and safety laws the same as non-church bake sales; church bus drivers as beholden to the traffic code as non-church motorists, and the like.  In public accomodations law, a church which acts as a landlord or lessor is as bound by non-discrimination laws as others as soon as they offer their property to those outside their faith; if you rent your hall out to only your members, you may exclude others, but if you rent it to anybody else, you have to rent it to everybody protected by the statute.  Churches who act as secular employers are bound by all aspects of employment law, too; you can sexually discriminate when it comes to choosing a pastor if it’s tied to your beliefs, but not when hiring an office worker.

    So how much does the state have to accomodate religious practices?  Absent a statute like New York’s, not much.

    Two cases illustrate the state’s obligation when it comes to actual religious practices.  In Employment Division v. Smith, the court held that ritual peyote use by Native American practitioners was sufficient grounds to deny unemployment benefits, even though it was a legitimate, essential, and longstanding religious practice, noting that the state could choose to accomodate individual religious practices against a religion-blind criminal law, but was not obligated to do so. In Church of Lukumi Babalu Aye v. City of Hialeah, a statute which forbade ritual animal sacrifice was struck down because it effectively served only to prohibit the legitimate religious practices of a voodoo church, and was thus not in fact religion-blind even though it purported to be.

    What’s important to note here is that in both cases, the practices involved are inarguably important religious practices by the groups in question, closely tied to their beliefs, and yet in neither case did this automatically invalidate the statute.  Ultimately, what matters is that the statute be written so as to specifically curtail a particular religious practice of a particular religious group; otherwise, religion-blind regulations that happen to impact religious and non-religious practitioners alike are generally allowable, and in the case of criminal laws can even restrict specific aspects of religious worship itself, provided they apply to secular and religious transgressors alike.

    And that’s actual religious acts themselves.  In other words, even if refusing to issue licenses was an important part of their religious practice–if, every Sunday right after communion, everyone in the church went up to the alter and stamped a stack of same-sex marriage applications “REJECTED” before genuflecting and returning to their pews–they still wouldn’t be protected from New York’s same-sex marriage law because the law doesn’t specifically target their belief or affect them alone, either explicitly or de facto.

    And that of course is not the case; their beliefs with regard to same-sex marriage may be deeply held, but when they show up to work to process license applications, they aren’t acting in a religious capacity whatsoever.  Their case is more like a Christian Scientist physician who prescribes only prayer; her hospital would be free to terminate her, and the medical license board free to retract her license, and her surviving patients free to sue for malpractice, all because she failed to do her job as required and to provide the standard of care she owed her patients.  Her religious beliefs, while sincere and deeply held, do not grant her an exemption from fulfilling the religion-blind, secular requirements of her profession.

    New York’s religious accomodations statute can of course provide greater protections than those required by the First Amendment.  In fact, most states that enacted such laws did so specifically in response to the Smith peyote case.  But from the text of the New York statute itself, it’s pretty clear that it applies only to religious practices–acts of worship, religious clothing, and the like.

  • 2
    robtish says:

    Dave, thanks for that thorough response.

  • 3
    Ann S. says:

    Thank you, Dave, that was very informative.

  • 4
    Darina says:

    Wow Rob, that’s what I call a stretch!
    Thank you, Dave, that was interesting even for a non-American like me.

  • 5
    Hershele Ostropoler says:

    As a supplement to Dave’s wonderful explanation, if you look at NY and Federal guides for employers about religious accomodation, you will see, some things explicitly spelled out as not being required. One of them is allowing someone whose religious beliefs frown on homosexuality to not serve gay customers.
    In other words, if a hotel clerk is asked to rent a room with one bed to two men, the clerk can’t refuse and then cite religious beliefs and EEO to avoid disciplinary action. So it should be the same for a marriage license clerk.

Leave a Reply




You can use these HTML tags

<a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>