Those trousers are the real sin…
After the U.S. Supreme Court’s Obergefell v. Hodges ruling in June this year, same-sex marriage was legalized across the entire country, superseding state statutes and municipal rulings, as all Constitutional rulings do. As many county clerk offices began refusing to issue licenses to same-sex couples for bigoted religious reasons, it was only a matter of time before a poster-child for the homophobic hysteria movement was found. Her name is Kim Davis, a Democrat clerk elected in January of this year who promised to “follow the statutes of [the] office to the letter”, except, y’know, the ones she disagrees with. A devout Christian who has been married four times, Davis has turned away same-sex couples and even heterosexual couples, citing “God’s authority” as cause to do so. She asked to be exempt from filing out marriage licenses to same-sex couples, the office refused, and she became an overnight celebrity.
Only weeks after Davis was temporarily jailed for contempt of court, which repeatedly dismissed her religious liberty objections, a Muslim flight attendant for ExpressJet by the name of Charee Stanley caused a similar storm when the airline fired her for refusing to serve alcohol to passengers. Her employer initially agreed to make accommodations for her religious beliefs by getting another colleague to serve the drinks, but an accusatory complaint by a fellow employee was taken seriously by the airline and they put her on leave, threatening her with termination if she did not begin to serve alcohol. Stanley refused to serve alcohol, so she was fired, and is now suing the airline for discrimination.
Although the questions about how to have a secular state which still allows for genuine religious freedom might seem profoundly difficult, a few simple principles already in place illustrate why Davis’ refusal and Stanley’s refusal are not comparable cases, aside from the obvious differences between handing our marriage licenses and handing out small bottles of wine.
One is the Constitution, that pesky document that prevents the theocrats and the far-right from creating the Christian dystopia they hold so dear. Specifically, the First Amendment has two clauses that act as the foundation for secularism in the United States: That no restraint on the right to believe and practice religion shall be made, and that no law respecting any religious beliefs shall be made, so that the non-believers are not forced to submit to religious doctrine. That’s one of the reasons having “In God we trust” as the official motto and on money is so controversial – it is seen by some as a breach of the First Amendment because it respects monotheistic Judeo-Christian religious beliefs, which not every citizen subscribes to and should not be forced to subscribe to.
The reason Kim Davis and her merry band of supporters cannot cite the First Amendment as a defense is because granting Davis an exception to handing licenses to same-sex couples would be respecting an establishment of religion, i.e. an interpretation of Christianity that sees marriage as between a man and a woman. The Obergefell v. Hodges ruling demonstrates that marriage in the U.S. is not just between a man and a woman, therefore to supersede it by granting Davis an exception violates not only the First Amendment’s neutrality towards religious beliefs, but also violates the sovereignty of the Supreme Court.
The Supreme Court would be worthless if everybody could opt out of rulings they don’t like or that violate their beliefs, and so it must override any lower-level laws. Furthermore, the First Amendment prohibits people from having a religious get-out clause of laws they don’t like because that would be tantamount to defiling the Amendment itself. Kim Davis is an employee of the state, which is bound by Constitutional amendments and Supreme Court decisions whether she likes it or not, and if she doesn’t like it, she should resign.. Her office does not have the authority to grant her an exception, and she does not have the authority to ask for one.
The differences with the Stanley case are many. For one thing, Congress has not passed a 28th Amendment granting the unbridled right to consume alcoholic drinks, nor has the Supreme Court ruled that the existing Constitution grants that right. Furthermore, Stanley is an employee of a private corporation, not an elected representative of the state, and is therefore free to negotiate the terms of her employment with the people in charge, even if she is not free to negotiate Supreme Court rulings. If indeed there were a 28th Amendment granting the right to alcohol, Stanley and ExpressJet would not be allowed to negotiate an exemption.
As mentioned earlier, what has been conveniently left out of media reporting on her case is that ExpressJet initially agreed to a religious exemption and only reneged on their deal when a fellow employee made a complaint against her, accusing her of being lazy, of wearing a headscarf, and of carrying “foreign writings”. A clear Islamophobic knock-down rather than a genuine complaint against her work practices.
Because there are no Supreme Court decisions, state statutes or Constitutional Amendments that grant citizens the unbridled access to alcoholic drinks, Stanley was well within her rights to ask for an exemption for religious reasons, and the airline was well within their rights to grant her one. If that sets a precedent that respects Islamic beliefs over other religious beliefs, that’s their business. They are a private company and can adapt their business strategy to respect or disrespect any religions they choose to, within the confines of the law. Furthermore, there are other flight attendants in very close proximity who can serve alcohol to the passengers. Stanley’s religious exemption does not prevent passengers from getting access to alcohol, but Kim Davis’ religious exemption prevents gay couples from getting married, albeit only temporarily.
All that aside, one wonders how much support Kim Davis would be receiving if she were turning away disabled couples or interracial couples. It seems that gay rights are still not respected to the extent that other minority rights are, at least in the case of goods and services. If it is wrong to refuse service on the basis of skin colour, it is surely wrong to refuse service on the basis of sexuality too. Refusing to serve alcohol, by comparison, is frivolous.