Expanding Public Employee Religious Accommodation and Its Threat to Administrative Legitimacy

In the wake of same-sex marriage legalization, most religious conservatives realize that they now share a minority viewpoint on many social issues. Such change has forced those formerly trying to forestall social evolution to instead seek legal recusal from engaging in matters that conflict with their religious beliefs. Not surprisingly, these recent legislative attempts to “affirm” religious free expression all focus upon the rights of the religious adherent, while mostly failing to consider the potential harm to third parties. In the provision of government services, this omission can do significant, lasting damage to public perceptions of administrative legitimacy—often already perilously maligned. Should government officials be legally obligated to grant their employees religious accommodations that they know will result in negative public perceptions, or worse, inflict dignitary harm among citizens seeking its services? This book draws attention to the threat to effective government that proposed expansions to religious accommodation laws can create. From damaging public opinion, to the myriad implementation concerns such as what even constitutes a religious belief to be accommodated, these challenges should serve as a warning to legislators and religious accommodation advocates to reconsider application of these enhanced obligations to the civil service. Acknowledgements 6 Contents 8 Chapter 1 Introduction 9 Post-Obergefell Political Mobilization 13 Legislative Action 15 Public Employee Religious Accommodation 17 A Religious Workforce 20 Complicity Claims 22 Plan of the Book 24 Chapter 2 The Obligation to Accommodate 28 Religious Exemptions 28 Title VII Religion Accommodation 35 Efficiency of the Service 45 Conclusion 47 Chapter 3 What Even Constitutes Religion? 48 Conscience v. Religion 49 Do We Need to Define? 52 Adjudicator Attempts to Define 54 The Supreme Court 54 The Federal Courts 57 The Equal Employment Opportunity Commission 59 Alternative Approaches to Religion 60 Summary 62 Chapter 4 Expanding Religious Accommodation 66 EEOC Interpretation 72 ADA Accommodation in the Federal Workplace 76 Workplace Religious Freedom Act (WRFA) 77 Chapter 5 Applying the Heightened Standard 88 Religiously Motivated Speech 90 White Supremacy 94 Police Officer Patrols 100 Refusal to Counsel 107 Pharmacist Refusal 111 Bible Verses in the Workplace 114 Letter Carrier Refusal 118 Fertility Clinic Refusal 119 Clerks Refusing Same-Sex Marriage Clients 120 Chapter 6 Challenges of an Expanded Obligation 124 Challenges to Implementation 125 Application of Heightened Standard by Supervisors 125 Multiple Requests 129 Non-quantifiable Burdens 131 Complicity Claims & Who Is Entitled to Refuse? 135 Adjudicatory Difficulty 137 Constitutionality 142 Establishment Clause Concerns 142 Separate but Equal? 151 Constitutional Torts 153 Conclusion 156 Chapter 7 Threatening Legitimacy 157 The Importance of Administrative Legitimacy 158 Organizational Stigma 163 Dignitary Harm 164 Counter-Argument 169 Chapter 8 Accommodation as a Sword 174 Religion and Politics 175 Religious Lawyering 180 Religious Lawyering as Activated Interest Groups 182 Conclusion 184 Chapter 9 Conclusion 185 Expanding Public Administrator Religious Accommodation Rights Is Inconsistent with Administrative Ethics 186 Workplace Religious Accommodation from an International Perspective 187 Index 191 "In the wake of same-sex marriage legalization, most religious conservatives realize that they now share a minority viewpoint on many social issues. Such change has forced those formerly trying to forestall social evolution to instead seek legal recusal from engaging in matters that conflict with their religious beliefs. Not surprisingly, these recent legislative attempts to "affirm" religious free expression all focus upon the rights of the religious adherent, while mostly failing to consider the potential harm to third parties. In the provision of government services, this omission can do significant, lasting damage to public perceptions of administrative legitimacy - often already perilously maligned. Should government officials be legally obligated to grant their employees religious accommodations that they know will result in negative public perceptions, or worse, inflict dignitary harm among citizens seeking its service? This book draws attention to the threat to effective government that proposed expansions to religious accommodation laws can create. From damaging public opinion, to the myriad implementation concerns such as what even constitutes a religious belief to be accommodated, these challenges should serve as a warning to legislators and religious accommodation advocates to reconsider application of these enhanced obligations to the civil service"-- Back cover Front Matter ....Pages i-vii Introduction (James N. Szymalak)....Pages 1-19 The Obligation to Accommodate (James N. Szymalak)....Pages 21-40 What Even Constitutes Religion? (James N. Szymalak)....Pages 41-58 Expanding Religious Accommodation (James N. Szymalak)....Pages 59-80 Applying the Heightened Standard (James N. Szymalak)....Pages 81-116 Challenges of an Expanded Obligation (James N. Szymalak)....Pages 117-149 Threatening Legitimacy (James N. Szymalak)....Pages 151-167 Accommodation as a Sword (James N. Szymalak)....Pages 169-179 Conclusion (James N. Szymalak)....Pages 181-186 Back Matter ....Pages 187-193