Earlier this year, the Texas Attorney General invited judges and clerks who wished to refuse to perform same-sex marriages on religious grounds to defy the Supreme Court’s order to get over it and grant everyone the freedom to marry. Though he acknowledged that doing so could potentially create cause for litigation, he assured them that a team of attorneys—and his support—would be standing by to help them fight back against evil gay marrying leftists bent on presumably marrying not just each other, but dogs, cats, and random pieces of furniture. His move prompted considerable irritation among those who feel that people who want to be able to married should be able to do so without undue fuss, including a Texas legislator, Senator Rodney Ellis, who wrote a letter to US Attorney General Loretta Lynch to ask her to keep an eye on the Lone Star State and step in if any civil rights violations occurred.
It was a defense of his constituency and a reinforcement of an earlier statement that he was pleased with the outcome of the Supreme Court case, but he also made an important political point in the letter when he discussed, specifically, religious exemptions. Attorney General Paxton claimed that people shouldn’t be forced to do things that go against their religious values—an argument that should echo in the ears of those who remember pharmacists refusing to provide birth control, nurses refusing to assist with abortions, and bakers refusing to, uh, bake cakes—and Senator Ellis expressed considerable concerns about the massive slippery slope involved.
We are, after all, talking about a situation in which a state AG basically told those who are responsible for upholding the law that they could ignore if if their personal beliefs happened to conflict with it, which is an incredibly dangerous precedent to set. Notably, Texas is among several states that have attempted to pass anti-sharia laws, so evidently it’s okay to let people with conservative Christian values impose their beliefs on Texans, but not to let those with conservative Muslim beliefs do the same. This is quite an intriguing dichotomy, as surely in a nation where religious freedom runs core to our values, people of all religions deserve an equal place in society. And if religious values are grounds for legal decisions, then, well, goodness, we should be incorporating sharia and the Talmud and other legal systems and beliefs into the interpretation of law in the United States, in the interests of fairness.
What the AG meant, of course, was that conservatives hell-bent on insisting that everyone should follow their rigid and often reprehensible belief system could freely impose that system on other people. His decision to indicate that the state would support public employees who refused to do their jobs was troubling, as it makes me wonder what else he supports behind closed doors, and how Texas can allow a public official to make a statement like that without reprimand. Clerks and judges aren’t responsible for imposing their morals on members of the public; they’re responsible for carrying out tasks related to processing filings, recording them, and witnessing legal documents, or trying cases and making determinations on the basis of law. That’s it.
Activism has no place in this context, though I believe that public employees should be free to exercise their free speech rights when they are off the clock—if a judge wants to participate in an anti-abortion march, she is free to do so, just as a clerk is more than welcome to support gay rights at a rally. We must be able to separate people from the jobs that they do, and while it’s unreasonable and impossible to expect people to do their jobs completely without bias, it would be nice if we could at least pretend to care about the issue. Telling people that it’s completely fine to allow their biases to dictate what they do on the job would definitely not call into the category of pretending to care, especially when paired with promises of legal defense.
If judges were allowed to use their personal beliefs when interpreting cases, the senator pointed out, they could refuse to perform divorces on the grounds that they violate personal values. He also argued that judges might refuse to hand down death penalty sentences on the grounds of a Biblical mandate about not killing people. By extension, judges could be governed by any number of other beliefs that are explicitly personal, not grounded in the law—a judge might rule in favour of someone filing suit against a shellfish farm on the grounds that shellfish aren’t kosher, for example, or could uphold an appeal over gun ownership due an ardently pro-gun interpretation of the Second Amendment that isn’t actually rooted in law or Constitutional theory.
Clerks don’t get to decide what passes and what fails on the basis of how they think the world should be—their job is to do what’s in their job description, including granting marriage licenses, performing marriages if requested, and recording them in the county register. Judges, likewise, don’t get to exercise their religious freedom in the courtroom, no matter who they are. It doesn’t matter if you hate gay marriage or shellfish or guns: You have to leave it all at the door when you put on your robe or get behind the records desk, and if you can’t, you need to be in a different career, one where you don’t have a role as a public servant responsible for providing services equally and without discrimination.
Image: Judge John Noonan, Christopher Michel, Flickr