Open advocacy of discrimination is not popular in the United States, and advocates who claim that the right to discriminate is an essential part of “religious liberty” are unlikely to win over the nation if most voters believe that these advocates are seeking such a right. Just look at what happened in Indiana, where the backlash against a sweeping “religious freedom” law forced one of the most conservative governors in the nation to sign an amendment to that law ensuring that it would not be used “to refuse to offer or provide services, facilities, use of public accommodation, goods, employment, or housing to any member or members of the general public” on the basis of a list of protected traits that includes “sexual orientation” and “gender identity.”
A lawsuit filed earlier this month in a federal court in Indiana, however, seeks to turn this dilemma for the religious right on its head. In essence, the plaintiff in this suit claims, people who believe that LGBT Americans are entitled to the same government benefits as straight Americans are the Real Bigots. The complaint filed in this case claims that a government official who insisted that all of her employees comply with the Constitution is, herself, guilt of discrimination. And the plaintiff, who was denied the right to refuse to serve same-sex couples, is cast in the role of the oppressed minority.
Linda Summers was, until recently, a deputy clerk at the county clerk’s office in Harrison County, Indiana. Shortly after court decisions required the state to end marriage discrimination against same-sex couples, Summers’ boss sent an email to all of the office’s employees informing them that “it is our duty in the Clerk’s Office to process” marriage applications from these couples “[e]ven though it may be against your personal beliefs.” Yet, when a same-sex couple sought a marriage license from Summers last December, Summers refused to process their application.
Later the same day, Summers gave a written “Religious Accommodation Request” to her boss, claiming that she has “a sincerely held religious belief against same sex marriages,” and asking that a different employee of the Clerk’s Office be assigned to process applications from same-sex couples. Summers’ lawsuit claims that she has a legal right to such an accommodation, that she should not have been fired for refusing to afford same-sex couples their rights under the Constitution, and that she should receive back pay and punitive damages.
This effort to paint Summers as the real victim of discrimination is clever, and it does have some grounding in federal civil rights law. As the Supreme Court reaffirmed less than two months ago, federal law requires employers to accommodate “a religious practice that it could accommodate without undue hardship.” Compared to anti-gay clerks who want to prevent same-sex couples from receiving marriage licenses entirely, Summers is asking for a relative minor accommodation. She will let these couples receive a license, so long as someone else processes it.
But even if Summers can make a plausible argument that she is entitled to such an accommodation under federal civil rights law, a federal statute cannot trump the Constitution. And the Supreme Court’s recent marriage equality decision cuts strongly against her arguments. “The Constitution,” the Court explained in Obergefell v. Hodges, “does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.”
Thus, if an opposite-sex couple can walk into a clerk’s office and be served immediately by whichever employee happens to be processing marriage licenses at that moment, a same-sex couple must be afforded the same treatment.
Additionally, Obergefell calls for more than just formal equality between same and opposite-sex couples seeking to marry. The plaintiffs in that case, Justice Anthony Kennedy explained in his opinion for the Court, “ask for equal dignity in the eyes of the law” and the “Constitution grants them that right.” This promise of “equal dignity” would be violated if a same-sex couple asked a government worker to provide them with a license they are entitled to as a matter of law, only to discover that this representative of the government refuses to serve them because they are gay.
Yet, while Summers’s lawsuit is likely to run headlong into Obergefell, her suit does foreshadow a wave of similar cases that will probably be filed by employees of private companies. A tailor may refuse to make alterations to a lesbian’s wedding dress, for example. Or a waiter may refuse to wait tables at the wedding of two men. The plaintiffs in these cases may have a stronger case than Summers, who, as a government worker, was obligated to follow the Constitution.
Nevertheless, such a worker’s case would hardly be a slam dunk. Among other things, they may still need to convince a court that it is acceptable for an anti-gay employee to potentially send an anti-gay message to their employer’s LGBT customers — a message that could falsely communicate to those customers that the company as a whole holds bigoted views.
Regardless of whether Summers or other anti-gay workers are likely to prevail with this tactic, however, it reflects a certain kind of political sophistication on the part of anti-gay advocates. If you can’t convince the rest of the nation that discrimination is acceptable, then why not try to convince them that you are the real victim?