Kim Davis And Public Safety Employees

It’s spreading, as you might expect it would. Kentucky Clerk Kim Davis says her Christian religion prohibits her from performing gay marriages. Now, a Muslim flight attendant says her religion prohibits her serving alcohol to passengers.

The broad question is whether public safety employees have the right to refuse to do part of their jobs because of their religious beliefs. There’s actually a bit of caselaw on the issue, all of it involving police officers. As shown by the following excerpt from the recently-published Seventh Edition of my book, “The Rights of Law Enforcement Officers,” officers have not fared well in these cases. Courts believe pretty strongly that public employees cannot pick and choose what elements of their jobs they choose do perform based upon their religious (or other) beliefs.

 

 

Officers Refusing To Enforce Particular Laws Because Of Their Religion.

A number of cases have involved law enforcement employers who have refused to accommodate requests made by their employees for alternate assignments in order to avoid a conflict with their religious beliefs. Thus far, employers have prevailed in all such cases.

For example, one case involved a state trooper who requested that his employer not assign him to investigate crimes at a casino. The trooper believed that the assignment would involve his facilitation of gambling, and would thus violate his religious beliefs. When the employer refused to accommodate the trooper’s request and discharged him for refusing to work the casino detail, the trooper brought a religious discrimination suit.

A court upheld the trooper’s discharge. As the following passage indicates, the Court was clearly concerned about any influence religion might have on the enforcement of the law:

“Many officers have religious scruples about particular activities: to give just a few examples, Baptists oppose liquor as well as gambling, Roman Catholics oppose abortion, Jews and Muslims oppose the consumption of pork, and a few faiths include hallucinogenic drugs in their worship and thus oppose legal prohibitions of those drugs. If Endres is right, all of these faiths, and more, must be accommodated by assigning believers to duties compatible with their principles. Does the law require the State Police to assign Unitarians to guard the abortion clinic, Catholics to prevent thefts from liquor stores, and Baptists to investigate claims that supermarkets mis-weigh bacon and shellfish? Must prostitutes be left exposed to slavery or murder at the hands of pimps because protecting them from crime would encourage them to ply their trade and thus offend almost every religious faith?”[i]

Following this general approach, another court held that the law offered no protection for a Roman Catholic FBI agent who claimed a right on religious grounds to be free of any assignment concerning nonviolent opposition to military activities.[ii] In a similar case, another court found that Title VII did not protect a Roman Catholic Chicago police officer who refused to protect abortion clinics and their clients. The concurring opinion in the case stated the issue powerfully:

“Public protectors such as police and firefighters must be neutral in providing their services. The public knows that its protectors have a private agenda; everyone does. But it would like to think that they leave that agenda at home when they are on duty – that Jewish policemen protect neo-Nazi demonstrators, that Roman Catholic policemen protect abortion clinics, that Black Muslim policemen protect Christians and Jews, that fundamentalist Christian policemen protect noisy atheists and white-hating Rastafarians, that Mormon policemen protect Scientologists, and that Greek-Orthodox policemen of Serbian ethnicity protect Roman Catholic Croats. We judges certainly want to think that U.S. Marshals protect us from assaults and threats without regard to whether, for example, we vote for or against the pro-life position in abortion cases.”[iii]

[i] Endres v. Indiana State Police, 334 F.3d 618 (7th Cir. 2003); see Slater v. Douglas County, 743 F.Supp.2d 1188 (D. Ore. 2010).

[ii] Ryan v. Department of Justice, 950 F.2d 458 (7th Cir.1991).

[iii] Rodriguez v. Chicago, 156 F.3d 771 (7th Cir. 1998).