Saturday, December 17, 2016

Summers v. Whitis: Title VII, Religious Freedom, and the Nine Circles of Hell

In Summers v. Whitis, No. 4:15-cv-00093-RLY-DML (S.D. Ind. Dec. 15, 2016), District Court Judge Richard L. Young concluded that the Harrison County Clerk's Office did not discriminate against Linda G. Summers based on her religion when it fired her for refusing to process a marriage license for a same-sex couple. Judge Young reasoned that there was "no objective conflict between Summers' duties as deputy clerk and her religious opposition to same-sex marriage."

Although the defendant may very well have acted lawfully, Judge Young's legal reasoning leaves much to be desired.

Under Title VII of the Civil Rights Act of 1964, if an employee's religious beliefs conflict with an employment practice, then the employer is required to exempt the employee from the practice or provide some other accommodation, unless doing so would result in an undue hardship on the employer's operations.

Summers clearly believed that processing a marriage license for a same-sex couple violated her religious beliefs, and that is the reason she refused to comply with her supervisor's request. Judge Young erred in rejecting Summers's claim merely because, in his view, Summers's duties were "purely administrative" and did not require her to "perform marriage ceremonies or personally sign marriage licenses or certificates."

Now, to be sure, Summers might very well have had more of a religious objection if she had been required to play a greater role in the legal recognition of same-sex marriages. But she clearly was required to play some role, and Judge Young had no reason to doubt that Summers sincerely believed that even that arguably small role was too much. It is clear therefore that Summers's job duties conflicted with her religious beliefs.

Picture the nine circles of Hell from Dante's Inferno. Under Judge Young's view, it is as if Title VII only protects conduct that relegates sinners to the innermost circles of Hell.

Because Judge Young concluded that there was no religious conflict, he did not address whether providing an accommodation would result in an undue hardship. Under Title VII, an employer is not required to accommodate a religious belief if it would result in anything more than a de minimis burden. This is not much of a burden, but when an employer can accommodate an employee without incurring any significant cost or administrative burden, then failure to provide an accommodation can violate Title VII.

Summers's religious objection to processing marriage licenses seems largely analogous to the religious objections that have been raised by some pharmacists to requirements that they dispense emergency contraceptives. For instance, in Vandersand v Wal-Mart Stores, the court noted that Wal-Mart might be able to easily accommodate religious objections to dispensing emergency contraceptives by having someone else perform the task.

If Summers were the only individual authorized to process marriage licenses, then the defendant would have a strong argument that accommodating her religious objections would result in undue hardship. In Miller v. Davis, for example, the court held that the Rowan County Clerk could be required to issue marriage licenses to same-sex couples because a couple would otherwise be required to travel to another county to obtain a license.

By contrast, Summers's refusal to process a marriage license for a same-sex couple merely resulted in the inconvenience of having the license be issued by her supervisor, the Harrison County Clerk. Still, it's not clear whether the County Clerk -- or someone else -- generally would have been available to process a marriage license for same-sex couples, so the fact that the County Clerk was able to process the license on this one occasion does not necessarily mean that this would have been typical. Consequently, it's possible that having to find a substitute for Summers would have resulted in undue hardship, and if so, the defendant did not violate Title VII by terminating Summers.

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.