Problems may arise when a religious person with firm convictions is an employee of the state or is elected to a position in the state’s bureaucracy. During the last few years there has been a move in many countries, including the United States of America, to accept that two people of the same sex can be married to each other in exactly the same manner as two people of different sexes can be married. This was being done state by state, but recently the United States Supreme Court decided that it is unconstitutional to deny homosexuals the right to marry each other, meaning that all states in the USA must now allow same sex marriages.
In September of 2015 there was such a case unfolding in the USA regarding an elected official, a County Clerk in Kentucky, who refused to issue any marriage licenses, even to heterosexual couples, so as to avoid having her signature on a marriage license authorising two homosexuals to marry. This person is a member of a Christian church which is strongly opposed to homosexual marriage, and she agrees with that position. Some of the homosexual couples refused a license then sued, charging discrimination, and she was ordered by the State’s Supreme Court to issue licenses to them, but refused, citing her right to religious freedom and the separation of Church and State as the basis for her refusal. She was then jailed for a few days for contempt of court while the Judge ordered her subordinates to issue the licenses, which was done. She is now appealing the judge’s ruling and other associated matters.
This raises several questions, all basically asking whether religious conviction can override the constitutional obligations of a State. Who trumps whom? Specific questions are:
Refusal to carry out a function
Most countries, certainly Canada and its Provinces and the USA and its States, are bound by some kind of constitutional law authorising them to provide certain services to their citizens. In addition, the relevant parliament may have enacted legislation to provide other services or stipulate how various jurisdictions and groups under its control must do so. There is also a whole host of jurisprudence and precedent from court decisions about how practices were done in the past, and these are usually well known. Most jurisdictions have set up procedures which take all these into account so that the legal requirements for doing certain things go smoothly and citizens can be efficiently served. By very long usage, marriage licenses are a fundamental part of this.
When a country says that certain types of people can marry, then that should be the end of the matter unless the decision contradicts the controlling law, the constitution involved. In this case in Kentucky, the Federal US Supreme Court has final say as to the application of their constitution and they have said that people of the same sex may marry each other. That is now the law, and no State may contradict that without violating the US constitution. Similarly, in Canada the Supreme Court had previously made much the same decision and same sex marriage has been valid in Canada for some years.
At the same time, both constitutions make it clear that there is a clear divide between the state and religion. Neither country may enact legislation to endorse a religion or make any particular religious dogma the standard for behaviour. In this respect, the state is different from religious organisations because it enacts legislation reflecting the wishes of its citizens, and is bound only by its constitution and legislated principles of freedom and rights. Religious organisations must comply with any valid legislation enacted and in that sense are subordinate to the state. Neither country has enacted legislation saying that an elected official may refuse to do something the state requires them to do because of religious conviction, since that would be a law establishing a right on the basis of religious belief and would clearly discriminate against those who did not have that belief or opposed that belief. In this context, if a religious person who believed same sex marriage was immoral were to be exempted from issuing a marriage license to a same sex couple because of that belief, then the same sex couple would be the subjects of discrimination because they obviously disagreed with the religious belief.
Quite obviously, the services provided by the state cannot be inhibited by religious whim, and some provision must be made to ensure that those services can be provided at all times, independently of the preferences, religious or otherwise, of its elected officials or employees. In this case, it is the State’s obligation to ensure that marriage licenses are issued whenever the conditions for issuing them are met, including an application by two persons of the same sex. The state is fully entitled to enforce this obligation and may use the court system if necessary, including legal penalties against anyone who is obligated to issue these licenses but who refuses to do so. The reason for refusal is irrelevant. When the conditions for issuing a marriage license are met, it must be issued. If an elected official or an employee cannot, in good conscience, comply with and fulfil the state’s obligation then the onus is on them to remove themselves from the situation. If an employee, this would usually be by transfer to another position or by resignation. If an elected official it would be by resignation on the basis that they are unable to carry out the duties of the position.
In all scenarios such as this, surely the overriding principle must be that the state has the right to ensure it is capable of fulfilling its obligations, and that no individual or group may inhibit or frustrate that obligation.
Everyone has freedom of religion and conscience and everyone also has the concurrent right to freedom from religion and conscience. It follows that no person may be compelled either to do something or not to do something because another person, elected or not, directs them to follow a specified course because of the their own personal, religious beliefs or their own personal conscience. No elected official should have the authority to impose their beliefs, whether religious or secular, on their subordinates. The obligations of the state supersede the elected official’s wishes and any employee who ignores religiously motivated restrictions should be held harmless for refusing to comply. All directives given to subordinates must be to facilitate and ensure compliance with the state’s obligations. Personal whim, particularly of a religious nature, has no part in governance.
Hiding religious restrictions while seeking office
Should someone seek elected office with the intention of obtaining authority to use in frustrating the obligations of the state because of personal beliefs, then surely there should also be provision in the legislation governing the election to rectify the situation. Perhaps, for elected officials, the controlling legislation needs to include a requirement that a person standing for election must sign a covenant agreeing to faithfully carry out the duties of the position should they be elected, and that they will resign within a specified period should they become unable at a later date, for any reason, to comply. Refusal to provide such a guarantee should make them ineligible for election. If the person signs this covenant, then refuses to comply immediately after being elected it should form the basis for charges of perjury, since they will have knowingly signed a false guarantee. Hiding religious restrictions while seeking elected office is grossly dishonest and no different from lying to the electorate. In cases where someone refuses to carry out their duties for this reason, it should be seen as the equivalent of a formal resignation and they should automatically cease to be an elected official within a specified period from their first refusal to do so.
Adhering to religious dogma
Freedom of religion includes the right to pick and choose what to believe and what to reject. Nobody has the right to impose personal beliefs on another person, no matter how incongruous the person’s choices may appear to be.
This may best be illustrated with the situation of the elected official who is at the centre of the Kentucky case. She has been married four times, twice to the same man, and has been heavily criticised for this on the basis that it shows a lack of respect for marriage, which many religious people say was instituted by god. Yet she now is in control of who may and who may not receive a marriage license in her county. The fact is that there are no restrictions, biblical or secular, on how many times a person may marry. Criticising her on that basis therefore has little validity.
It is rather incongruous, though, that she refuses to issue a marriage license to same sex couples on the basis that it is an “abomination”, as the bible describes homosexual relationships, whether she uses the word or not, while she herself is in an “abomination” of a marriage.
Deuteronomy chapter 24, verses 1-4, says:
When a man hath taken a wife, and married her, and it come to pass that she find no favour in his eyes, because he hath found some uncleanness in her: then let him write her a bill of divorcement, and give it in her hand, and send her out of his house. And when she is departed out of his house, she may go and be another man's wife. And if the latter husband hate her, and write her a bill of divorcement, and giveth it in her hand, and sendeth her out of his house; or if the latter husband die, which took her to be his wife; Her former husband, which sent her away, may not take her again to be his wife, after that she is defiled; for that is abomination before the Lord: and thou shalt not cause the land to sin, which the Lord thy God giveth thee for an inheritance.
This woman divorced her second husband, then married another man whom she subsequently divorced, then remarried her second husband. This sequence is the very one that is called an abomination in Deuteronomy. She may well be a hypocrite since she refuses to issue a marriage license to homosexuals because the bible says such relationships are an abomination, but has no compunction about living in an abomination of a marriage herself. Nevertheless, she does have the right to refuse to accept the bible’s definition of her marriage as an abomination if she so chooses. She is certainly at liberty to reject what the bible says, even though she may claim it is god’s word, and she is fully entitled to cherry pick her sins. So is her church, which apparently detests homosexual abominations but fully approves of and accepts marital abominations, providing, of course, that these abominations are heterosexual between a man and a woman.
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