On June 26, 2015, the Supreme Court in a landmark ruling, held in Obergefell v. Hodges that same-sex couples had a constitutional right to marry and to have their marriages recognized in every state. As the impact of this ruling has spread, a number of high profile cases made news where public officials have refused to issue marriage licenses or perform marriage ceremonies due to personal religious objections. Just as the Kim Davis controversy has begun to die down after a Federal judge ordered her deputy clerks to begin issuing marriage licenses, news has come out that the Oregon Commission on Judicial Fitness and Disability has instituted disciplinary proceedings against Judge Vance Day, for, among other possible infractions, screening same-sex applicants for wedding licenses and refusing to preside over same sex weddings, despite such unions being legal in Oregon. Generally speaking, under Title VII of the federal Civil Rights Act, both public and private employers have a duty to exempt religious employees from generally applicable work rules, so long as this won’t create an “undue hardship,” meaning more than a modest cost, on the employer. However, elected officials, such as Judge Vance Day in Oregon or Kim Davis in Kentucky, are expressly exempted from the definition of “employee” under the Act. There are two key reasons public officials have fewer protections for religious accommodations. First, elected officials, as agents of the government, are sworn to uphold equal protection of the laws under the 14th Amendment. The other is that allowing such officials to reshape their job duties and administrative procedures in accordance with their religious beliefs could effectively create a state establishment of religion which is expressly forbidden by the First Amendment. As more and more of these issues come to light and dominate the news cycle, employers, both public and private, should be aware of where their obligations to accommodate employees’ religious beliefs begin and end. The resolution of these issues is often fact-specific and involve highly sensitive, personal beliefs.
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