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If Kim Davis were an employee, could she be fired for refusing to grant marriage licenses to same-sex couples?

Marriage License

Yup.  She’s an elected official, so she can’t be “fired,” but if she were an employee, her religious beliefs would not shield her from the essential obligations of her job. Read more here: edition.cnn.com

Just because she maintains that her religion prevents her from issuing said licenses does not mean that she is protected from any adverse employment action against her.  The job of a county clerk is to provide individuals and businesses access to the services of the government, which includes marriage licenses.  Read the Duties of Elected County Officials here.  This is a key obligation for someone in her position- an essential duty that cannot be excised from the job description.  Under Kentucky law, an elected official must sign marriage licenses, and that is the job of the county clerk.  While many religious beliefs and practices can and should be accommodated, this is not one of those cases.

You may wonder how this is different from the case of the young Muslim woman who won her case after a potential employer failed to hire her because her head scarf violated the company’s dress code.  The difference is in how important the rule that is being bent or broken to accommodate the religious practice is.  A dress code being bent to accommodate a head scarf is really not that big a deal.  The young woman could still wear the clothes she was asked to wear; and would not be hindered in assisting customers, the main job function of the position she was seeking.  Read our blog post from June 2015 to learn more.

However, the rule stating that an employee must carry out his or her most basic job duties in compliance with the law is not the kind of job duty that can be accommodated away.  This isn’t Kim Davis asking not to work Sundays, or saying that she wants to wear a necklace with a cross on it.  This is Kim Davis saying that she will not perform one of her most important job duties and thereby deny a specific and fundamentally important service- the right to marry- that only she can provide to a specific group of people.

This also raises another important point about religious accommodation.  In the words of Justice Oliver Wendell Holmes, Jr., “your liberty to swing your fist ends just where my nose begins.”  Sure, you can be opposed to gay marriage.  That’s a fundamental right.  You can talk about it.  You can protest.  However, you cannot infringe on the right of anyone else to marry his or her same-sex partner when U.S. law states that this is a fundamental right.  If your job is to be the only person in a county who can provide marriage licenses, your right to your belief ends where the right of someone else to get married begins.

So, if Kim Davis were an employee, she would definitely be subject to termination.