Several hundred people demonstrated their support for County Clerk Kim Davis in Kentucky as she spent her third day in jail on contempt charges. Davis has refused to issue marriage licenses to gay couples. (AP)

Can your religion legally excuse you from doing part of your job? This is one of the questions in the Kentucky County Clerk marriage certificate case. But it also arises in lots of other cases — for instance, the Muslim flight attendant who doesn’t want to serve alcohol and who filed a complaint on Tuesday with the Equal Employment Opportunity Commission over the airline’s denial of an exemption.

The question has also arisen before with regard to:

  1. Nurses who had religious objections to being involved in abortions (even just to washing instruments that would be used in abortions);
  2. Pacifist postal workers who had religious objections to processing draft registration forms;
  3. A Jehovah’s Witness employee who had religious objections to raising a flag, which was a task assigned to him;
  4. An IRS employee who had religious objections to working on tax exemption applications for organizations that promote “abortion, … homosexuality, worship of the devil, euthanasia, atheism, legalization of marijuana, immoral sexual experiments, sterilization or vasectomies, artificial contraception, and witchcraft”;
  5. a philosophically vegetarian bus driver who refused to hand out hamburger coupons as part of an agency’s promotion aimed at boosting ridership;
  6. and more.

And of course it arises routinely when people are fine with their job tasks, but have a religious objection to doing them on particular days (e.g., Saturdays and Fridays after sundown).

Under Title VII of the federal Civil Rights Act, both public and private employers have a duty to exempt religious employees from generally applicable work rules, so long as this won’t create an “undue hardship,” meaning more than a modest cost, on the employer. If the employees can be accommodated in a way that would let the job still get done without much burden on the employer, coworkers, and customers — for instance by switching the employee’s assignments with another employee or by otherwise slightly changing the job duties — then the employer must accommodate them. (The Muslim flight attendant I mentioned above, for instance, claims that she has always been able to work out arrangements under which the other flight attendant serves the alcohol instead of her.)

Thus, for instance, in all the cases I mentioned in the numbered list above, the religious objectors got an accommodation, whether in court or as a result of the employer’s settling a lawsuit brought by the EEOC. Likewise, the EEOC is currently litigating a case in which it claims that a trucking company must accommodate a Muslim employee’s religious objections to transporting alcohol, and the court has indeed concluded that the employer had a duty to accommodate such objections. But if the accommodation would have been quite difficult or expensive (beyond the inevitable cost that always come when rearranging tasks), then the employer wouldn’t have had to provide it.

Now I’m not saying this to praise the law, or to claim that it’s demanded by vital principles of religious freedom. One can certainly argue against this approach, especially as applied to private employers, but also as applied to the government.

The government is barred by the Free Exercise Clause from discriminating based on religion, but the government has no constitutional duty to give religious objectors special exemptions from generally applicable rules. Maybe it (and private employers) shouldn’t have such a statutory duty, either. But my point so far has been simply to describe the American legal rule as it actually is, and as it has been for over 40 years (since the religious accommodation provisions were enacted in the 1972 amendments to Title VII).

Once we see this rule, we can also make some practical observations about it:

1. The rule requires judgments of degree. Some accommodations are relatively cheap (again, always realizing that any accommodation involves some burden on employers), while other are more expensive. The courts have to end up drawing some fuzzy line between them. Maybe that’s a bad idea, but that’s what Congress set up with the “reasonable accommodation” requirement. So if you want to argue that one religious objector shouldn’t get the relatively easy accommodation she wants, you can’t do that by analogy to another claim where the accommodation would be very expensive.

2. The rule turns on the specific facts present in a particular workplace. An accommodation can be very expensive when the objecting employee is the only one at the job site who can do a task, but relatively cheap when there are lots of other employees. It can be very expensive when all the other employees also raise the same objection, but relatively cheap when the other employees are just fine with doing the task.

Again, maybe that’s a bad rule, but it’s the rule Congress created. And if you want to argue that one religious objector shouldn’t get an accommodation that’s easy at the objector’s job site, you can’t do that by pointing out that the accommodation would be expensive at other job sites.

3. The rule accepts the risk of insincere objections. Of course, when sincere religious objectors can get an exemption, others can ask for the same exemption even just for convenience rather than from religious belief. That’s not much of a problem for many exemption requests, since most people have no personal, self-interested reasons not to transport alcohol on their trucks, or raising an American flag on a flagpole. But for some accommodations, there is a risk of insincere claims, for instance when someone just wants Saturdays off so he can do fun weekend things. The law assumes that employers will be able to judge employees’ sincerity relatively accurately, and to the extent some insincere objections are granted, this won’t be too much of a problem. Again, the law might be wrong on this, but it’s the law.

4. The rule accepts the risk of slippery slopes, and counts on courts to stop the slippage. Once some people get a religious exemption, others are likely to claim other religious exemptions; indeed, some people who before managed to find a way to live with their religious objections without raising an accommodation request might now conclude that they need to be more militant about their beliefs. Here too, the law accepts this risk, and counts on courts to cut off the more expensive accommodations.

5. The rule rejects the “you don’t like the job requirements, so quit the job” argument. Again, that argument is a perfectly sensible policy argument against having a Title VII duty of religious accommodation. It’s just an argument that religious accommodation law has, rightly or wrongly, rejected.

6. The rule focused on what specific accommodations are practical. If someone demands as an accommodation that a company completely stop shipping alcohol, that would be an undue hardship for an employer. But if it’s possible to accommodate the person by just not giving him the relatively rare alcohol-shipping orders, then that might well not be an undue hardship.

* * *

OK, now we’ve seen the big picture, which is that sincere religious objections can indeed legally excuse you from doing part of your job — if the employer can exempt you without undue cost to itself, its other employees, or its clients (recognizing that some cost is inevitable with any exemption request). Now let’s try to see how it can apply to the Kim Davis controversy.

First, a technical but important legal point: Title VII expressly excludes elected officials. But Kentucky, like about 20 other states, has a state Religious Freedom Restoration Act (RFRA) statute that requires government agencies to exempt religious objectors from generally applicable laws, unless denying the exemption is the least restrictive means of serving a compelling government interest. The federal government also has a RFRA, which may apply to federal court orders issued to state elected officials.

Such RFRAs are narrower than Title VII (they apply only to the government) but also broader (they apply not just to employment but to all government action). Nothing in them exempts accommodation claims by elected officials. Moreover, the 1963-90 Free Exercise Clause rules that the RFRAs were meant to restore included protections for elected officials, see McDaniel v. Paty (1978); though McDaniel involved a rule that discriminated against religious practice, the plurality opinion treated it as a standard religious exemption request.

The terms of these RFRAs actually seem to offer greater protection for claimants — to deny an exemption, the government must show not just “undue hardship” but unavoidable material harm to a “compelling government interest.” Tagore v. United States (5th Cir. 2013) illustrates this: When Sikh IRS agent Kawaljeet Tagore sought a religious exemption from IRS’s no-weapons-in-the-workplace policy for her kirpan (a 3-inch dulled symbolic dagger), the court concluded that accommodating the request was an “undue hardship,” but allowed the RFRA claim to go forward, so that the trial court could determine whether denying the exemption “furthers a compelling government interest with the least restrictive means.” On the other hand, Harrell v. Donahue (8th Cir. 2011) took the view that, at least as to federal employees, RFRA provided no protections beyond those offered by Title VII.

The Kentucky appellate courts have had no occasion to interpret the Kentucky RFRA yet (it was enacted in 2013), and I don’t know of cases under other state RFRAs dealing with government employees or elected officials. But it’s very likely that (1) the Kentucky RFRA, by its terms, would apply to religious exemption claims brought by elected officials, and (2) it would provide at least the protections offered to ordinary employees by the Title VII religious accommodation regime, and possibly more.

* * *

With all this in hand, we turn to the Kim Davis controversy.

1. The current lawsuit is a federal claim against her, claiming that her policy of not issuing any marriage licenses (for any couples, same-sex or opposite-sex) is a violation of the U.S. Constitution’s right to marry. Whether the policy does violate the right to marry (and not just the state law mandating that clerks issue marriage licenses, a state law that federal courts generally don’t enforce) is an interesting question, given that licenses are available from neighboring counties. Compare Ezell v. City of Chicago (7th Cir. 2011), which rejected the “you can go to the neighboring city” argument when it came to Chicago’s ban on shooting ranges and Schad v. Borough of Mt. Ephraim (1981), which did the same as to a town’s ban on live entertainment.

But in any event, if Davis has a federal constitutional duty to issue marriage licenses, she wouldn’t be able to get a religious exemption from that duty, and decline to issue such licenses at all — denying County residents their constitutional right would certainly be an “undue hardship” imposed on the County and its citizens, and requiring her to comply with the Constitution would be the least restrictive means of serving the compelling interest in protecting citizens’ constitutional rights.

Yet besides her losing claim in the federal lawsuit, it seems to me that Davis has a much stronger claim under state law for a much more limited exemption. Davis’s objection, it appears (see pp. 40, 133, and 139 of her stay application and attachments), is not to issuing same-sex marriage licenses as such. Rather, she objects to issuing such licenses with her name on them, because she believes (rightly or wrongly) that having her name on them is an endorsement of same-sex marriage. Indeed, she says that she would be content with

Modifying the prescribed Kentucky marriage license form to remove the multiple references to Davis’ name, and thus to remove the personal nature of the authorization that Davis must provide on the current form.

Now this would be a cheap accommodation that, it seems to me, a state could quite easily provide. It’s true that state law requires the County Clerk’s name on the marriage license and the marriage certificate. But the point of RFRAs, such as the Kentucky RFRA, is precisely to provide religious objectors with exemptions even from such generally applicable laws, so long as the exemptions don’t necessarily and materially undermine a compelling government interest.

And allowing all marriage licenses and certificates — for opposite-sex marriages or same-sex ones — to include a deputy clerk’s name or just the notation “Rowan County Clerk” [UPDATE: see below] wouldn’t jeopardize any compelling government interest. To be sure, it would have to be clear that this modification is legally authorized, and doesn’t make the license and certificate invalid. But a court that grants Davis’s RFRA exemption request could easily issue an order that makes this clear.

Indeed, Kim Davis has filed a federal complaint against state officials under, among other things, the Kentucky RFRA. And, as I noted, one of the proposed accommodations that she herself has suggested, albeit in the federal stay application, is the simple removal of her name. But that sort of accommodation based on the Kentucky state RFRA is not a remedy that’s likely to be available in federal court.

But if Davis sues in state court, seeking a declaration that she can issue licenses and certificates without her name — as a Kentucky RFRA-based exemption from the Kentucky statutory requirements for what must go on her license — I think she’d have a good case. The federal district court rejected her Kentucky RFRA argument on the grounds that the requirement doesn’t much burden her beliefs:

The record in this case suggests that the burden [on Davis] is more slight. As the Court has already pointed out, Davis is simply being asked to signify that couples meet the legal requirements to marry. The State is not asking her to condone same-sex unions on moral or religious grounds, nor is it restricting her from engaging in a variety of religious activities. Davis remains free to practice her Apostolic Christian beliefs. She may continue to attend church twice a week, participate in Bible Study and minister to female inmates at the Rowan County Jail. She is even free to believe that marriage is a union between one man and one woman, as many Americans do. However, her religious convictions cannot excuse her from performing the duties that she took an oath to perform as Rowan County Clerk. The Court therefore concludes that Davis is unlikely to suffer a violation of her free exercise rights under Kentucky Constitution § 5.

But though I agree that her religious convictions can’t excuse her from issuing marriage licenses altogether, I think the judge erred in the rest of the analysis in this paragraph. If Davis believes that it’s religiously wrong for her to issue licenses with her name on them, ordering her to do that indeed burdens her religious beliefs, enough to trigger the Kentucky RFRA. And giving her the more modest exemption from the include-the-court-clerk’s-name requirement might therefore indeed be required by the Kentucky RFRA. (The federal district court’s conclusion about the inapplicability of the Kentucky RFRA won’t be binding on state courts, because that conclusion came in a preliminary injunction hearing; such conclusions on preliminary injunction generally lack so-called “collateral estoppel” effect on future hearings.)

[UPDATE: Some commenters argue that the clerk’s name can only be removed if the Kentucky Legislature amends the relevant law. But with RFRA, the Kentucky Legislature has already enacted a state law that provides for religious exemptions from existing state laws — there doesn’t have to be any follow-up statute implementing any such exemption; a court can simply issue an order saying that an exemption from one state statute (the signature requirement) is available because of another state statute (the RFRA).

Relatedly, some commenters argue that asking to be excused from the state law requiring the clerk’s signatures would be trying to violate the law. I agree that just refusing to issue licenses is a violation of state law. But asking for an exemption from a state statute under the state RFRA would be asking for something that state law itself provides, because state law includes the state RFRA.]

So if Kim Davis does indeed go through the state courts, and ask for a modest exemption under the state RFRA — simply to allow her to issue marriage licenses (opposite-sex or same-sex) without her name on them — she might indeed prevail. Rightly or wrongly, under the logic of Title VII’s religious accommodation regime and the RFRA religious accommodation regime, she probably should prevail.

There’s a lot of appeal to the “you take the job, you follow the rules — if you have a religious objection to the rules, quit the job” approach. But it’s not the approach that modern American federal employment law has taken, or the approach that the state religious exemption law in Kentucky and many other states has taken.

Muslim truck drivers who don’t want to transport alcohol, Jehovah’s Witnesses who don’t want to raise flags, Sabbatarians (Jewish or Christian) who don’t want to work Saturdays, and philosophical vegetarians who don’t want to hand out hamburger coupons can take advantage of this law. Conservative Christian county clerks who don’t want to have their names listed on marriage certificates and licenses likely can, too.

[UPDATE: When talking about the Kentucky RFRA claim raised in Kim Davis’s federal complaint against state officials, I wrote, “I think the federal theories in the federal complaint are unpersuasive, and I doubt that a federal judge would be inclined to order state officials to carve out an exemption from state marriage license/certificate law under the state RFRA — in principle, such a decision by a federal judge is possible, but in practice I expect the federal judge would likely leave this to state courts." But reader Jason Walta points out that a federal judge generally can’t issue an injunction against state officials under state law, see Pennhurst State School & Hospital v. Halderman (1984), and getting the exemption recognized would likely take an injunction or a declaratory judgment; so I changed the text to say “that sort of accommodation based on the Kentucky state RFRA is not a remedy that’s likely to be available in federal court." As you might gather, this doesn’t affect the rest of the analysis, but I thought it was worth noting; many thanks to Jason Walta for the correction.]

UPDATE, Tuesday Sept. 8, 2015: I’ve been corresponding with Davis’s lawyers in light of their most recent (Sept. 7) filings, and the way the exemption request is discussed in those filings. They confirmed that Davis would have no religious objections to her office handling the marriage licenses and certificates if a judge applying the Kentucky RFRA held that:

  1. the licenses would be issued, as a matter of Kentucky law, under the authority of someone other than Davis or the County Clerk, for instance the County Judge Executive or a deputy clerk who was willing to put his name on them, and
  2. the licenses reflected that accommodation, by including the name and office of the authorizing person (again, the Judge Executive or deputy clerk or whoever else) instead of Davis’s name and office.

Davis’s objection to the federal judge’s order — and the licenses and certificates issued pursuant to that order — is that the licenses and certificates are still being issued (in her view) under her ostensible authority, even though Davis has not authorized them.

This accommodation is somewhat broader than the one I originally discussed above (which was just removing her name from the licenses and certificates, and possibly replacing it with “Rowan County Clerk”). She would object to having the documents note that they come from the office “Rowan County Clerk,” and she would also want an official declaration from the court that the licenses aren’t being issued under her authority. It’s possible that these demands go a bit too far for the Kentucky RFRA (as I noted above, the more burdensome a requested accommodation is, the less likely it is that a court will grant it), though it’s hard to tell, given that RFRAs are written in general terms, and a lot of the line-drawing questions are left for judges to make on a case-by-case basis. Still, the accommodation doesn’t seem tremendously burdensome, or that different from what’s already being done under the judge’s order, so it’s possible that this is what will happen.

However, whatever Davis thinks of the federal judge’s order, she has to comply with it or risk being jailed again (as of this update, she has just been released from jail), though she is of course free to continue appealing the order.