SADOW: Post-Obergefell, Louisiana Is On The Front Lines Of Religious Liberty

When the U.S. Supreme Court recently created a new protected class, people who identify themselves as homosexuals, it opened a whole can of worms regarding questions of freedom of religious exercise, and Louisiana appears to have become ground zero for sorting it all out.

Specifically, the issue right away became whether individuals who are asked in behave in a way that would cause them to deny their religious beliefs, by having them by way of cooperation to assist in the commission of what they see as facilitating immoral acts, must provide that service. The questions arose both in the performance of public sector duties and in those non-government persons and entities participating in commerce.

Regarding government employees, the issue arose when Gov. Bobby Jindal’s office issued a memorandum that stated that clerks of court and state employees who process marriage license requests from people of the same sex wishing to marry may refuse to do so. The legal brief essentially restated federal law (Title VII of the Civil Rights Act), which requires an agency to accommodate employees’ exercise of their religion unless such accommodation would impose an undue hardship on the conduct of the agency’s operations. Practically speaking, this means that employees who object to handing out such licenses may defer if other employees can be found to do the same; if not, then the objecting employee(s) likely would be forced to do so because that would cause undue hardship on operations. The severity of hardship is judged by whether it would cause an actual cost to the agency or to other employees or be an actual disruption of work.

At the state level this is backed by Art. X Sec. 8 of the Louisiana Constitution, which says that no classified employee (which would include systems such as the clerk of court offices) shall be discriminated against because of his religious beliefs, which actually leaves out the elected clerks and high-ranking state employees with oversight of the Office of Vital Records, which is the state agency empowered with distributing marriage licenses in Orleans Parish. In other words, punishment could not be levied against a classified employee that refused to perform a task contrary to his religious beliefs, and if done so that employee could use civil service procedures to obtain relief. Note that the recent decision, the 14th Amendment, and incorporation of the 1st Amendment to states means that the federal law applies in this instance of when clashes the belief about endorsing same sex marriage through validating it with license issuance and the request to produce one.

As a matter of course, this means all classified employees in Louisiana should be able to opt out. For example, if every employee at a clerk’s office refused, the clerk himself, even if he objected on religious grounds, would have to perform the task regardless, not only to avoid undue hardship in duty performance by the agency, but also because as an unclassified employee he does not have the same protections in employment. Of course, if at least one employee did not object while the clerk did, issuance still would occur.

Whether this will satisfy the increasingly intolerant advocates of extinguishing from the culture any kind of moral approbation against those who practice homosexuality is another matter. They certainly did not take kindly to Jindal’s issuance this spring of an executive order that would prohibit the state from retaliating against people and both for-profit and non-profit entities acting in accordance with their religious beliefs on marriage, by such things as withholding state benefits or commerce, causing differential tax treatment, or by denying forms of licensure. That has culminated in a lawsuit claiming that Jindal usurped legislative authority in doing this and it would have the practical effect of, the plaintiffs argue, sanctioning discrimination because they allege it would not apply to those who accept same sex marriage.

There’s disingenuousness in this attempt, because as sure as the sun rises had the bill sponsored by state Rep. Mike Johnson on which the order was based passed into law, there would have been a suit on different grounds against it. And desperation is part of this as well, for as Johnson notes it’s a weak case; just because the order does not mean that the state will not retaliate against believers in traditional marriage, its presence does not mean that the state automatically will retaliate against believers in non-traditional marriages, such as same sex, polygamist, incestuous, interspecies, or what have you. Alternatively, an identical order including beliefs about other arrangements could be issued or appended to the existing one.

Still, the offensive illustrates the escalating bullying against culturally conservative beliefs about sexual self-identification, where zealots show zero tolerance to those who equate committing homosexual acts with immorality. According to their Sharia, it is not just that only those who believe in this cannot use the policy-making process to have government prevent the endorsement of the proscribed acts, but also that they be branded as unworthy, lesser people who must be made to understand, if not accept, that this view makes them bad people and cannot be tolerated to exist by forcing them to behave in ways endorsing that do not assign homosexual behavior as illegitimate. For to allow even one exception to this party line on the basis of religion grants legitimacy to the idea that to commit homosexual acts is to behave immorally, that it is a competing conceptualization equal in worth to its opposite notion. Deep down, these intolerants cannot stand that they may be judged by some others as committing offensive acts and feel driven to suppress any hint that this view is as fair and reasonable as theirs that there’s nothing wrong with how they act.

Which is why a massive fight brews, for it’s all or nothing to these people and compromising with them is impossible. And the early indications are that Louisiana may turn out to be from where judicial conflicts emanate that could have major constitutional repercussions regarding free exercise of religion.



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