The furore over the Kentucky county clerk who refused to officiate in same-sex marriages and went to jail rather than accept a compromise involving her underlings doing the job on her behalf brought out the predictable placard-waving groupies shrieking inane slogans about ‘God’s law’ and religious freedom on the one hand, and pro-same-sex-marriage clichés (e.g. ‘Love wins’) on the other.
To get an insight into the real issues involved, let’s change location to the comparative sanity of Western Europe. There was a very similar case before the European Court of Human Rights in 2012 (Ladele, one of the ‘and others’ in Eweida and others v UK 2013).
The litigant, a marriage registrar, had refused to officiate in [same-sex] civil unions (this was before the UK Marriage Act had been amended to allow same-sex marriage). In both cases, the figure at the centre of the drama claimed that her Christian beliefs forbad her from taking part in the official sanction of same-sex relationships and cried foul when her employer failed to acquiesce.
European governments followed the proceedings with bated breath and there was an almost audible sigh of relief when the judgment went against the litigant. Not because of anything to do with marriage law nor indeed with freedom of religious belief, but because if it had gone the other way, it would have thrown employment law, especially concerning State employees, into disarray.
If an employee can refuse to perform certain duties on the basis of those duties going against his/her beliefs, job descriptions and employment contracts would become just about meaningless. They would have to be drafted on an individual employee basis, and every time there was a change in the law or ministerial policy affecting those employment conditions, they would have to be renegotiated.
There are situations where an employee can be excused from performing certain duties owing to personal qualms about the rightness of those duties. Doctors and nurses who harbour objections to abortion, for instance, are covered by a conscientious-objection clause and no disciplinary action can be taken against them for refusing to participate in abortions (unless it is an emergency situation and the pregnant woman is seriously at risk). However, being a gynaecologist/obstetrician does not necessarily involve performing abortions as an integral part of the job. There is also the pertinent observation that an abortion, as a medical treatment, is not something that a woman has an enforceable legal right (in the sense of an entitlement) to.
Being a registrar of marriages is not in the same league. That person’s routine job is to officiate at marriages and civil unions, without which the job would not exist. People moreover have a legal right, upon meeting certain conditions stipulated by law, to being officially married (or civil-unioned, if that’s the right word). The registrar is acting as an agent of the State which guarantees that right.
I do have some sympathy for cases such as these where the law changed after the complainant joined the service. A marriage registrar who went into the job before civil unions or same-sex marriage didn’t have to spare a thought to the prospect of having to officiate at a ceremony where there’s two grooms or two brides rather than a groom and a bride. For a person who (like me) is dead-set against same-sex marriage, or is against same-sex civil unions, it’s a very bitter pill to have to swallow to be told that s/he now has to officiate at such proceedings. But it’s a pill s/he has to swallow, or leave the service. Saying “I won’t do it” amounts to breaching the employment contract, and s/he has to be prepared to pay the price if that is what s/he does.
I do not regard it as relevant that the basis of the errant employees’ objections are religious. If a non-believer with strong objections to same-sex marriage (like yours truly) were in these women’s shoes, it should make absolutely no difference. To allow one employee to not perform certain duties because s/he has religious objections but to not make the same allowance for another employee whose objections are non-religious would be ‘discrimination on the basis of religion’ against the latter. Which, one should hope, would not wash in any Western European court at least.
Incidentally, doctors and nurses who don’t want to take part in abortions do not have to elaborate on the reasons for their objection. They can simply say that they are opposed to the procedure on grounds of conscience and so no distinction is made between religious and non-religious objections.
All it really comes down to is State employees refusing to do the job they are paid to do because they personally disapprove of certain aspects thereof or of certain instances that may arise in the performance of their duties. But, to labour the point, a marriage registrar must officiate at marriages and civil unions whether s/he personally approves of the couple being joined or not. If s/he can’t handle changes in the law that allow a couple of guys to ‘marry’, s/he has the option of resigning from that position as marriage registrar. Sounds a bit rough, perhaps, but consider the shambles that would eventuate if employees’ contractual obligations were made subject to their personal whims.
Barend Vlaardingerbroek BSc, BA, BEdSt, PGDipLaws, MAppSc, PhD is Associate Professor of Education at the American University of Beirut.