IN Clerk Sues After Being Fired for Refusing to Do Her Job

An employee in the Harrison County, Indiana clerk’s office has filed a lawsuit after being fired for refusing to issue marriage licenses to same-sex couples. The suit was filed in federal court, so it has nothing to do with the state’s Religious Freedom Restoration Act law passed a few months ago.

Linda Summers, a former clerk’s office employee in Harrison County, filed the lawsuit last week against the county and County Clerk Sally Whitis in the U.S. District Court for the Southern District of Indiana in New Albany. The suit, which is filed in federal court, is not an invocation of the state’s new Religious Freedom Restoration Act or RFRA.

According to the complaint, Summers wrote and hand-delivered a letter to Whitis, telling her that processing licenses for gay couples is against her sincerely held religious beliefs against same-sex marriage, and asking that she not be required to do so.

Summers was fired on Dec. 9, shortly after she gave her letter to Whitis, who accused her of insubordination. She accused her former employer of unlawful employment practice and alleged that her termination is against the county policy of not discriminating against anyone based on “race, religion, color, sex, age, national origin, disability, military status, or any other classification under applicable law,” according to the complaint.

Oh, sweet irony. She’s being discriminated against if you don’t let her discriminate against others!

Louisville lawyer Richard Masters, who is representing Summers, said the lawsuit is “just a generic First Amendment free exercise case” and his client had the protected right to exercise her religious beliefs that go against same-sex marriage.

No she doesn’t, any more than she could refuse to give a license to an interracial or interreligious couple. Government employees do not get to pick and choose which constituents they are magnanimous enough to serve, regardless of their religious beliefs. And I don’t know why Summers told the newspaper that this is just a generic free exercise clause case. It’s not. It’s based entirely on Title VII of the Civil Rights Act, which forbids discrimination on the basis of religion.

So yes, she is making the argument that since her religious beliefs demand that she discriminate against others, if she is not allowed to do so she is being discriminated against on the basis of religion. This is, of course, nonsense. Never has an individual person, much less a government employee, been granted an exemption from anti-discrimination law on the grounds of their religious beliefs because to do so would make such laws moot. Anyone can claim a religious basis for engaging in any form of discrimination and it is not discrimination against them not to allow them such an exception.

You can read the complaint here.

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  • eric

    Hmmm…I think I would’ve responded with a formal notice that if she refused service to someone, she would be fired. Then waited until she did so to fire her. IANA employment lawyer but doesn’t pre-emptively firing her carry some risk that your case for firing wasn’t strong enough?

  • Reginald Selkirk

    And I don’t know why Summers told the newspaper that this is just a generic free exercise clause case.

    It wasn’t Summers who said that, but Summers’ lawyer, Richard Masters. And my first guess at the reason would be incompetence.

  • John Pieret

    Her argument is that, since there were other clerks willing to process SSM licenses, there was a “reasonable accommodation” for her religious beliefs that could be made, similar to situations where an employee doesn’t want to work on his/her holy days and others employees of comparable skill are willing to work those days, the employer has to adjust the work schedule to accommodate the employee’s religious practice. It is not a totally loopy argument.

    The clerk’s office may well have to show that it would be an “undue hardship” to excuse her from processing the licenses which is general defined as incurring “more than a de minimis cost”.

  • Michael Heath

    John Pieret writes:

    Her argument is that, since there were other clerks willing to process SSM licenses, there was a “reasonable accommodation” for her religious beliefs that could be made, similar to situations where an employee doesn’t want to work on his/her holy days and others employees of comparable skill are willing to work those days, the employer has to adjust the work schedule to accommodate the employee’s religious practice. It is not a totally loopy argument.

    IANAL, so my rebuttal here is one merely of principle rather than precedent. But I still find this argument incoherent even under the conditions John describes above.

    This employee is the government in the context of receiving and issuing marriage licenses. From this perspective she has a constitutional obligation to protect applicants’ rights who happen to be gay. Her religion shouldn’t come into play because it’s irrelevant. I can’t see government acting compenently if employees are allowed to avoid their duties to protect our rights because they personally object – fuck that.

    Now I wouldn’t be surprised if conservative-dominated appeals courts have defended government employees seeking to discriminate against others when acting as the government, even when it means compromising the exercise of the constitutionally protected rights of certain people. So getting insight if there is a precedent for accommodating this employee as a person rather than the government would be welcomed. I just happen to think such protections are unconstitutional since we chartered the government to protect the exercise of our constitutional rights. I don’t see us delegating power to the government that allows them to compromise or deny their exercise. That where it’s important to distinguish the difference between the government (this employee) actively protecting a right and the government (this employee) trying to do end-runs around protecting rights they oppose.

  • John Pieret

    Michael Heath:

    I understand and generally agree with your objections but here, really, the question is staffing within the clerk’s office. Generally speaking, a clerk is free to assign duties to the office staff as he or she deems fit. Some might handle only marriage licenses and others only building permits. The reasonable accommodation argument is the other side of that coin. If there is a way to handle all the work of the office that does not infringe on an employee’s religious belief, it may be required to do so.

    Of course, the clerk is still required to process SSM licenses on the same basis as opposite sex licenses are processed … no special days for SSMs, no appointments required and if none of the clerks without a religious objection are available and only the one who objects can process it, she will have to suck it up and do it or be subject to dismissal.

  • Saad

    John Pieret,

    That won’t work in practice. It’ll end up creating Separate But Equal moments.

  • whheydt

    Re: John Pieret @ #5…

    I suspect that some of the argument is going to come down to the size of the office. If there are only one or two clerks in the office (certainly possible, or even likely, in a small county), there won’t be a way to handle to work in a way that accommodates the foibles of a particular clerk, meaning—under the point you make–that the clerk in question will have to “suck it up” as there is no alternative short of quitting or being fired.

    In a (relatively) large office, reassignment to a job that doesn’t require issuing marriage licenses is more likely to be possible, but even there, such a reassignment may feel like a bit of a demotion and generate objections, though such objections are probably easier to overcome legally.

  • whheydt

    Re: Saad @ #6…

    I think that is Mr. Pieret’s point. SSM licenses have to processed on the same basis–no delays, no special times, no “I’m sorry we don’t have a clerk that can handle that right now” when clerks are obviously available–as any other marriage license. Where I think this (and your point) would be a problem is a *small* office. The extra complication here is that there is likely to be a correlation between small (that is, low population) counties and rural, religiously conservative counties.

    What I foresee is big fights in relatively conservative states with a few decent sized cities and the rural “you can’t *make* us” counties. It’s Loving v. Virginia all over again. As I understand it, there are *still*–or in the very recent past–places (e.g. rural Alabama) where inter-racial couples may have difficulty getting married. Expect to see foot dragging on SSM for several decades to come in various backwaters.

  • Saad

    whheydt, #8

    Oops, you’re right.

    John Pieret, sorry, poor reading comprehension on my part there. You’d think this would have clued me in:

    Her argument is that…

  • cptdoom

    @1 Eric – that was my thought as well, and having had to terminate employees in the past I know you have to have a lot of back up and prove you’ve followed other avenues of discipline. Either there was more to this specific instance, or this employee has a history of not wanting to do their job.

  • John Pieret

    Saad:

    No problem. We lawyers are used to being misunderstood. 😉

    whheydt:

    some of the argument is going to come down to the size of the office. If there are only one or two clerks in the office

    Her complaint says that there were two other clerks in the office willing to do SSM licenses, so that may, indeed, be the basis of the clerk’s defense in this suit. Assuming, at a guess, that is all the clerks available, the clerk may argue that, what with sick days, vacations and the press of other work, it might be an undue hardship to have a third of the clerks unwilling to perform a particular function.

  • Randomfactor

    It is her boss’ deeply-held religious belief that he not be forced to employ persons who refuse to do their jobs. 1Peter 2:18.

  • John Hinkle

    I’m sure the other clerks in the office won’t mind doing her job for her. They probably won’t harbor any resentment either. In fact, they’d be more than happy to cut short their break and do her paperwork.

  • Saad

    John Hinkle, #13

    Well, that’s just the price they’ll have to pay for her superstitions!

  • Moon Jaguar

    Is this really more complicated than requiring every employee to fulfill the written job description they agreed to fulfill as a condition of employment? End of story?

  • http://www.facebook.com/profile.php?id=100000263140906 Donovan

    I wish I was the clerk receiving her case. “I’m sorry, but it’s against my sincerely held religious beliefs to file motions for bigots. Please arrange to have your case heard by another federal government.”

  • Saad

    Moon Jaguar, #15

    Is this really more complicated than requiring every employee to fulfill the written job description they agreed to fulfill as a condition of employment?

    It’s not really, but if aspects of your lifestyle, no matter how insignificant, can be shown to be rooted in sufficiently popular superstitions then you get special considerations in great secular societies over those who may make the same exact objections but without appeal to mythologies.