Can An Elected Official Claim A Right to Discriminate as a “Workplace Accommodation”?

When Kim Davis, clerk of Rowan County, Kentucky, got out of jail and went back to work, her first order of business was to announce publicly that while she’s not ordering her deputy clerks to refuse to issue marriage licenses to same-sex couples, she “want[s] the whole world to know” that she believes that said licenses are “unauthorized.” She continues to insist that because — according to her religious beliefs — same-sex couples should not get married, she should be exempt from carrying out her duties as county clerk in compliance with the Supreme Court’s decision in Obergefell v. Hodges.

Davis defied an order from a federal judge to comply with Obergefell, and spent five days in jail for contempt. She was released because her deputy clerks began issuing licenses. The release order provides that Davis is not to interfere in any way with that process. She seems to testing the waters, though: On her first day back, she ordered that her name, as well as the words “Rowan County Clerk” be crossed out from same-sex licenses, and replaced with “pursuant to a federal court order.” And she announced that “until an accommodation is provided by those with authority to provide it, any marriage license issued by my office will not be issued or authorized by me,” and “will not have my name, my title, or my authority on it.” The “accommodation” she seeks is some sort of change to the Kentucky statutes governing marriage licenses

Religious accommodation claims by private citizens are fairly common. But Davis’ claims raise a novel question: does an elected official have any legal claim to workplace accommodation based on a religiously-motivated desire to discriminate (for instance) based on sexual orientation? The answer helps illuminate how religious accommodation law works.

First of all, such a claim would have to arise under state law rather than federal. Neither Title VII of the federal Civil Rights Act, nor the federal Religious Freedom Restoration Act, applies to state elected officials. Moreover, the claim would have to brought in state court rather than federal court, because federal courts do not have the power to issue injunctions to state officials on the basis of state-law claims.  Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 116, 119 (1984).

Davis filed her third-party complaint (against the Governor and the State Commissioner for Libraries and Archives) in federal court, suggesting that she misunderstood the limits on the federal court’s injunction power. I’m using that complaint as the basis for the analysis below. Suppose, hypothetically, that Davis filed her suit in the right court and invoked the right sources of law: would she have a real claim under state law for an entitlement to religious accommodation consisting of a court-ordered rewriting of Kentucky statutory marriage laws? Others have analyzed this issue, most notably UCLA First Amendment scholar Eugene Volokh. I find Professor Volokh’s analysis unpersuasive. I don’t think workplace accommodation law is a very good fit for this situation, for five basic reasons, which can be summed up as follows: (1) Davis is the boss in her workplace; (2) the accommodation she is demanding is a rewriting of Kentucky statutory law on marriage licenses, which (3) is a job for the legislature and not something a court could or should order; (4) the requested accommodation would impose great burdens on same-sex couples, in the form of legal uncertainty about the status of their marriages; and (5) the demand for accommodation is based explicitly on Davis’ desire to discriminate in a manner that the Supreme Court has held to be unconstitutional.

Here are those five points:

Who is Davis’ employer? That is, who would the defendant be? Whom would you sue? That’s the first question a lawyer (as distinct from a theoretician) has to ask, and here I don’t see a clear defendant. A workplace religious accommodations case requires a claim brought by a worker against his or her employer regarding a demand by the employer that the worker perform a task that the worker believes violates his or her religious practice requirements. The remedy is either money damages, or an order requiring that the employer accommodate the worker by having someone else do the task, or modifying the task. In Davis’ case, it’s not at all clear who the “employer” or “supervisor” who is “imposing” the “workplace requirement.” It’s not the Governor or the Library and Archives Commissioner (the named defendants in her federal complaint), because neither is Davis’ employer or supervisor. Neither has any power to control her workplace, set her job requirements, or direct her to perform tasks. Neither can discipline her for refusing to perform tasks. In the performance of her duties as elected County Clerk, she doesn’t have any supervisor or employer telling her what to do and when to do it. Nor is the Kentucky Legislature (the entity that would have to rewrite its statutes to accommodate her) her employer. And the Supreme Court—the entity Davis is upset at—is certainly not her employer, nor can a person sue the Court to demand that the Supreme Court revise one of its decisions as a workplace accommodation to her. I don’t see anyone at whom Davis can point and say: this person is making me do x; please issue an order requiring this person to allow me to do y instead. Has there ever been a workplace accommodation case brought by an apex executive who already has complete authority to control her workplace conditions and assignments?

What would the accommodation be? Unlike a typical workplace-accommodation claimant, Davis is not just asking to be exempted from certain of her own workplace tasks. She already doesn’t have to sign any licenses; she’s the boss. Rather, she’s apparently demanding a change in the way marriage licenses are issued for everyone in Kentucky (assuming that what would be required is, as she says in her complaint, statutory changes). As noted, a workplace accommodation remedy is either money damages, or an order that the employer alter the conditions of the workplace to allow the worker to avoid doing the thing she does not want to do. The normal accommodation is: ok, don’t have the worker do that task; have other workers do that task, and have the religious worker do something else. According to Davis’ own complaint, that is not the sort of accommodation she wants. She is not requesting that she be personally exempted from issuing marriage licenses, and that other workers do so in her place. She’s the boss; she can direct, and has already directed, other workers to do the task in her place. But Davis is not satisfied with being personally exempted from issuing the licenses; she does not want the licenses to be issued at all if they have her name and state office printed on them. Thus analogies to, e.g., the Muslim flight attendant who wants to be exempted from serving alcohol, are misplaced. The analogy would only hold if the accommodation the flight attendant sought was an order that she didn’t have to serve alcohol and that no one on the flight she worked could drink alcohol at all.

How could the accommodation actually be granted? As Davis’ own complaint acknowledges, granting the type of accommodation she proposes, in which elected county clerks are no longer personally involved in the issuance or validity of marriage licenses, would require revising the Kentucky statutes governing marriage. It would require the creation of a new set of rules governing how marriages are licensed and recorded. That might be an easy thing for the legislature to do; the point is that it is a thing for the legislature to do. It’s not clear how a court even could do so if it wanted to, and it is doubtful in the extreme that a Kentucky court would undertake such a project, or be upheld if it tried. Would the court’s order change practices statewide? It’s hard to imagine that it would, because by the terms of the (hypothetical) lawsuit, it would be a specific accommodation for a specific person (Davis). And if it didn’t change practices statewide, then marriage licenses in Rowan County would be different from those in other counties, which brings me to the next point.

What about the burdens imposed on others? One of the major factors in any religious-accommodation analysis is the burden on the other affected parties of granting the accommodation. Thus, if exempting one worker in a workplace from a particular type of duty will have the effect of making all the other workers’ lives miserable, that’s a strong reason not to grant the exemption. Another type of burden is burden on the public or on a state interest. In this case, the people most burdened are the couples who got marriage licenses while Davis was jailed, or who would get licenses in Rowan County under some (hypothetical) “accommodation” regime in which Rowan County licenses were “exempted” from meeting Kentucky statutory criteria. Those people would be burdened extremely heavily, because they would face potential future challenges to the validity of their marriages. Those challenges could arise years or decades from now. The most obvious case would be at the death of one spouse, if the deceased spouse’s family challenged the inheritance of the surviving spouse. You could also see challenges to medical power of attorney if one spouse was incapacitated, or to child custody, or health insurance or Social Security, or all the other myriad contexts in which marriage matters. An accommodation for Davis which created permanent uncertainty about the validity of those couples’ marriages would place a severe burden on those couples, and would also burden the state’s interest in regulating marriage, inheritance, and child custody.

The requested accommodation is expressly based on a desire to discriminate unlawfully. Davis’ complaint comes right out and says it (Paragraphs 23, 31): what she wants is precisely, and only, to not give marriage licenses to same-sex couples. She says she has no objection to giving licenses to opposite-sex couples, or to any other aspect of her job. The Supreme Court has ruled that the refusal of state officials to issue marriage licenses to same-sex couples is unconstitutional. So even leaving aside all of the above, there remains the problem that the claimed injury for which she seeks redress is her express desire to engage in a form of discrimination that the Supreme Court just ruled is unconstitutional. What case suggests that an express desire to unlawfully discriminate must be granted a workplace accommodation? During a TV interview the other day I proposed a hypothetical.Suppose a Wahabi Muslim county clerk who believed on religious grounds that women should not be entitled to vote demanded an accommodation by which he could refuse to participate (by name or office) in registering women to vote, while loudly proclaiming to “the whole world” that women’s suffrage is against God’s word, and that every voter registration issue by his deputies is invalid and unauthorized. It is hard to imagine any court treating such a claim as anything but frivolous (and equally hard to imagine political candidates lining up to endorse it).

We don’t need to restrict ourselves to state officials: Query, for example, whether a corporate HR employee could demand an accommodation that she not sign off on or “be associated with” any benefits for same-sex spouses of employees. Workplace accommodation law becomes an uneasy fit, at best, when the accommodation sought is, by its own terms, based on an express desire to illegally discriminate.

Caleb Mason

Caleb Mason is a partner with Brown White & Osborn LLP. He is a former federal prosecutor, and handles a wide variety of civil and criminal litigation. He has authored numerous scholarly publications on criminal and constitutional law, and is a frequent media commentator on criminal-justice issues. He was recently appointed to the Police Commission for the city of Claremont, California.
Caleb Mason