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Oaths matter for spouses – and the officiant too

The state of North Carolina is paying $300,000 to a magistrate who quit rather than marry gay couples as ordered by the courts. Something is seriously wrong here. The magistrate was entitled to resign as a matter of conscience. But the religious accommodation that federal law requires of ordinary employers shouldn't apply to state officials who say that their religion means they can't obey their oath to the US Constitution.

The case of Gayle Myrick is admittedly a hard one. Myrick was a magistrate in Union County, where one of her duties was to perform marriages. In 2014, after the US Court of Appeals for the 4th Circuit ruled that gay marriage was a federal constitutional right, the North Carolina courts ordered magistrates in the state to comply.

Myrick then went to her supervisors and told them that as a matter of religious belief, she could not perform same-sex marriages. She worked out an accommodation so she would not have to do so. The state government told her that North Carolina had no exemption option in its guidelines. So Myrick resigned.

Even if you don't agree with her judgment (disclosure: I don't), it's possible to respect Myrick's decision to step down from her job rather than violate her religious conscience. There is a kind of Thomas More-style consistency in it.

Myrick also seems to have been careful not to express homophobic views while on the job. As she now puts it, “I have always wanted to find a way to protect everyone's dignity”.

If the matter had ended there, it would be fair to say the system worked. In a free country, no one should be obligated to stay in a job if performing it would violate her religious beliefs.

But the story doesn't end there, because Myrick filed a discrimination complaint that eventually reached the federal Equal Employment Opportunity Commission. The essence of her claim was that she should not have had to resign, because her employer, the state of North Carolina, should have taken reasonable steps to accommodate her religious beliefs.

An administrative law judge agreed with Myrick. He found that she had been involuntarily terminated and ordered that the state give her back pay and attorney fees.

Rather than appeal the decision, the state is paying Myrick and her lawyers. Her case will not recur, at least in North Carolina, because in 2015 the state passed a controversial law requiring the accommodation that was denied to Myrick.

As a general matter, there's nothing wrong with the federal employment law that was applied to Myrick. It says that an employer should take reasonable steps to accommodate an employee's religious observance. That's sensible, and respects the value of religious liberty.

But it was a serious mistake to apply that law to Myrick's case, for two separate but closely related reasons.

First, a religious exemption isn't a reasonable accommodation if it means the employee can't do her job. Myrick's job wasn't to solemnise the marriages of straight people. It was to perform the weddings of people lawfully entitled to marry in North Carolina. If her religion taught her that she could not perform some of those marriages, then she could not perform her job at all.

Second, a magistrate who refuses to perform marriages that are required under the Constitution's guarantee of equal protection of the laws inherently demeans the dignity of the couples seeking to marry. When a couple walks in the door of Myrick's office, that couple has a constitutional right to be treated with equal dignity to any other couple.

Put another way, Myrick's request for an accommodation was a request to be allowed to tell gay couples that they aren't equal in her office. It doesn't matter that someone else might perform the wedding. What matters is that the conduct of a state official would derogate from a gay couple's equal rights.

If you doubt this, imagine how you would feel if Myrick had said she wouldn't preside over interracial weddings because her religion prohibited miscegenation.

Imagine further that mixed-race couples who entered her office were told they would have to wait for another magistrate. That would constitute an experience of inequality and indignity in violation of the Constitution.

The upshot is that the state isn't just any old employer when it comes to enforcement of the Constitution.

Ordinary employers cannot, as a legal matter, violate customers' constitutional rights — because we hold those rights only against the state, not against private parties.

That's why Myrick, like other government employees, swore an oath to uphold the Constitution.

She was free to resign when she could no longer fulfil that oath. But when she did resign, it was her choice — not the result of the state's failure to accommodate her.

A state must follow the Constitution. Its employees must do the same. They can quit, but they shouldn't get paid for it.

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to US Supreme Court Justice David Souter. His seven books include The Three Lives of James Madison: Genius, Partisan, President and Cool War: The Future of Global Competition

Constitutional chaos: North Carolina is paying $300,000 to a magistrate who won a legal case after she resigned rather than marry gay couples as ordered by the courts

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Published March 01, 2018 at 8:00 am (Updated March 01, 2018 at 8:17 am)

Oaths matter for spouses – and the officiant too

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