What should happen if a government employee is asked to do something that violates her religious convictions? One possibility is to fire the employee if she won’t do the required task. No one has a right to work for the state, so if an employee can’t fulfill her job duties perhaps she should be replaced with someone who can.
This might be reasonable in some cases. If an employee is unwilling to fulfill a substantial or critical part of her job, she should be replaced. It makes little sense to permit a religious pacifist to be an infantry commander or a Jehovah’s Witness who objects to blood transfusions to serve as an emergency room doctor.
Yet in most real cases, as opposed to the imaginary case I discussed in my last post, government employees have raised religious liberty objections to only a few narrow duties, and often these cases involve new tasks brought about by job transfers or shifting public policy. In other words, these employees did not know they would be asked to violate their religious convictions when they accepted their positions.
For instance, after the Supreme Court struck down state bans on same-sex marriages in Obergefell v. Hodges in 2015, a few county clerks, magistrates, and judges raised religious objections to issuing licenses to same-sex couples or to participating in ceremonies. Several states passed laws protecting such employees, as long as other civic officials are available to provide requested services. Similarly, Congress has passed legislation protecting military chaplains from being required to perform marriages to which they have religious objections.
Such accommodations are commonplace in other policy areas. Consider the death penalty: since 1994, federal law has protected federal and state employees from being forced to participate in an execution “if such participation is contrary to the moral or religious convictions of the employee.” Surely a corrections officer should not be forced to choose between his job and his moral or religious convictions respecting the taking of human life.
Less dramatically, long before same-sex marriage became legal in Kentucky, the state permitted clerks to opt out of issuing licenses to which they objected. For instance, a clerk who is a member of People for the Ethical Treatment of Animals (PETA) can refuse to issue hunting licenses, provided that someone else is available to provide this service.
Finally, at a time when some loud voices are claiming that Islam is not compatible with American values, it seems evident that New York City’s decision to accommodate Muslim police officers who desire to wear a hijab is superior to Philadelphia’s decision to fire a woman for the same “offense.”
Religious liberty is a fundamental American value. The religious convictions of government employees should be accommodated whenever it is reasonable to do so.