America is a true cornucopia of languages, arts, culture, skills and of course religions. Religious freedom has been a part of the nation’s core identity since its conception and implementation in 1789. The first amendment to the constitution enshrines for us the freedom of religion, the right to practice whatever faith we believe in as free citizens. The only condition is that we don’t harm other citizens in the process. The problem I want to address is enforcement; the USA pretended to maintain a secular government while leaning in a Judeo-Christian direction for decades. Concepts left over from our colonial era like anti-sodomy laws, praying before congressional sessions, swearing in state officials on the bible, school mandated prayer, religious monuments in State Houses, are examples. The presence of religion permeated American society (public/private) in the entire Western Hemisphere. Many of these practices were wide spread until the Supreme Court’s decision in Engel v. Vitale ruling that state sponsored prayer should not be conducted in a public school by public officials. This was based on the establishment clause in the first amendment. A series of court cases that followed began to erode the presence of religion in public areas; i.e. religious monuments in State Houses. Over time the US has attempted to adopt a secular face while at the same time maintaining religious accommodations (protections) in the workplace, both public and private. Now there is a growing anti-theist view because of the recent headlines coming from Kentucky.
Kim Davis, a Rowan county marriage clerk in Kentucky, became famous almost overnight as a video posted on the internet shows her denying a marriage license to a gay couple because of her religious faith. She was protesting the Supreme Court’s ruling in June of this year that made state bans on gay marriage illegal. Condemnation from social media and other forums was swift with many painting Ms. Davis as a homophobic hypocrite, citing her 3 previous marriages. Ms. Davis was jailed several days later after refusing to comply with a Judge’s order to continue issuing marriage licenses. She was soon released. During this time Republican candidates rushed to her defense on the media and greeted her in person upon her release. Former pastor and Governor Mike Huckabee spoke with her on stage in front of a crowd of cheering fans in an effort to score political points. Pope Francis took the time for pastoral visit Kim Davis to bless her and tell her to keep strong. Stating in an earlier speech that the right to religious liberty is a fundamental human right for all people no matter where they work while also stating his disagreement with her actions.
The fact that Pope Francis made the visit to bless her and simultaneously criticizing her actions represents the attitude of justice and mercy that is lacking in today’s society. This short piece of literature is inspired by the spirit of Pope Francis. The situation surrounding Ms. Davis has been used by politicians to further polarize the electorate for gain. Rather than using this visit to gain support from the conservative wing of the clergy he has chosen this alternate route. Whatever his motivations, this is a positive move. Rather than polarizing the population and having her dig deeper roots with anti-gay factions the Pope has extended his hands in forgiveness and criticism. With this she would be more likely to open her heart to be more accepting in the long-run. If only the rest of nation would respond with that same state of mind.
The story of Kim Davis draws parallels of the issue to another case involving Atlanta based airline company, ExpressJet. Charee Stanley a flight attendant for ExpressJet filed a suit with the company after being placed on unpaid leave 1 year after she refused to serve alcohol to passengers . Ms. Stanley had worked with the company for 3 years. During that time she had converted to Islam. After discovering that serving alcohol as well as consuming it is against her the teachings of Islam , she petitioned ExpressJet for a religious accommodation. Ms. Stanley was able to obtain an accommodation by working with another flight attendant who agreed to serve the drinks instead. After a period of time that coworker filed a complaint stating that Ms. Stanley wasn’t fulfilling her full responsibilities as a flight attendant . The complaint went on to cite her concern about a book with “foreign writings” and that she wore a headdress. At that point ExpressJet placed Ms. Stanley on leave for refusing to serve the alcohol. These two cases aren’t unique. The legal and personal outcomes vary.
In June of this year Samantha Elauf, a Muslim woman, filed and won a lawsuit against Abercrombie & Fitch in the Supreme Court . The lawsuit was filed because Abercrombie & Fitch refused to hire a Muslim woman solely based on the fact that she wore a Hi-job to her interview . Since the Hi-job doesn’t fit with their dress code for staff she wasn’t hired. And another case involve a pediatrician who refused to perform a check-up on a new-born because the child’s parents were a lesbian couple. Citing her religion, she referred the couple to another doctor who performed the check-up that date.
The current Equal Employment Opportunity Commission (EEOC) regulations state that religious accommodations in the workplace both public and private sector are positive as long as those conditions do not pose an undue burden on the organization . “Undue burden” is defined as any accommodation that is costly, hurts efficiency, conflicts with the rights of others or shifts unequal burdensome work on to coworkers . Some people argue that not issuing marriage licenses for anyone rises to the level of denying the rights of others. In the case of Kim Davis it is undeniable that when she stopped issuing the marriage licenses for all couples to prevent a gay couple from getting married and denied many people’s rights failing to exercise central tasks. When it comes to essentials like food, housing, documentation and healthcare it is important that workers perform their duties to meet basic needs.
In regard to Ms. Stanley’s case I don’t agree that her accommodation meets the definition of an “undue burden” according the EEOC. An accommodation was reached between her and her co-worker on how to share the workload until the co-worker by some odd reason filed a complaint against her. So even though she reached an accommodation with her coworker, that person can go back on their word and the company punished Ms. Stanley. What’s the point of an accommodation if it depends on the good will of your fellow employees?
Initially I believed with the Abercrombie & Fitch case that A & F had the right to refuse Samantha Elauf’s application based on their dress code. Keep in mind that the business strategy of A & F is to have employees wear their clothes on the job as a sort of free advertisement. This is a particularly difficult case because the business model of A & F depends on the look of their employees. However, the lawsuit was filed stating that her religious freedom was violated because A & F refused her application based on her religion since the Hijab is a part of Islam. Since her application was denied it would seem, to many, ridiculous to sue because you didn’t get the accommodation for a job you never held. And for a lot of people it would seem silly that A & F would have to accommodate agreeing with their position that, ‘Well, she doesn’t have to wear the Hijab, nobody is forcing her to wear the Hijab’. Wearing a Hijab and have your coworker serve alcohol doesn’t pose an undue burden to job unless that it is crucial to completion of your main task(s). Also if you think about it the same logic could be apply to everyone else; race, sexual orientation, gender identity and sex. How far off is ‘Well your Hijab doesn’t fit with the look we are trying sell’ from ‘Well the fact that you won’t shave your beard conflicts with the look we are trying to sell’. At what point does an employer have control over the aspects of your life?
The current definition of “undue burden” is well defined and thought out where there is some balance between the employees and the companies they work for. Obviously we don’t want people working that will use their religion to shift the load onto other people entirely. Wearing a Hijab and have your coworker serve alcohol doesn’t pose an undue burden to job if the central part of the job is being done. The same logic could be apply to everyone else; race, sexual orientation, gender identity and sex. Are we a nation that is comfortable with having people change their identity for the dignity of work for even a brief period of time?
I have no illusion that some workers will try to stretch the boundaries, few will succeed. Although a good portion of people in certain communities believe that accommodations based on faith are ridiculous because religion itself is not necessary in the 21st century. But, those who say that don’t necessarily understand power that religion bestows on us. Having faith in a higher power or omnipotent being whether real or imaginary gives people hope, strength, confidence, perspective, inspiration, and direction. People who have challenges, the dis-advantaged, the poor, the homeless, refuges escaping desperation and death need this strength. Even ordinary people will great lives and no worries find something worthwhile in theology. Having these accommodation is important because for some people a head garment is much more than woven wool.