In physics, every action has its equal and opposite reaction. In politics, every action has its predictable overreaction.1There is an almost endless parade of horribles that could accompany the implementation of HB 1523 [âProtecting Freedom of Conscience from Government Discrimination Actâ]2âU.S. District Court Judge Carlton W. Reeves in Barber v. Bryant
These two observations made by Judge Reeves in his decision to enjoin implementation of Mississippiâs freedom of conscience bill accurately reflect what this book seeks to illuminate and avert. In the wake of the Supreme Courtâs Obergefell v. Hodges 3 decision granting marriage equality to same-sex unions, a renewed push for exemptions from mandates conflicting with sincerely held religious beliefs is underway. Religious conservative interest groups are actively lobbying legislators for statutory protections to freely exercise their beliefs. Similar to conscience clauses enacted to exempt individuals from facilitating abortions, legislators across the country, both federal and state, are introducing bills to protect an individualâs beliefs as to what constitutes marriage and sexuality. As Judge Reeves notes, however, such political reactions are often excessive, if not unnecessary, and they can inflict significant third-party harms.
This book focuses on one particular âhorribleâ that will likely result from a continued push for religious exemptionsâthe impairment of administrative legitimacy. This threat is explained in far greater detail in Chapter 7; however, a brief summary now of how this book conceptualizes administrative legitimacy will provide beneficial context. For this discussion, legitimacy is the manifestation of the publicâs collective trust and confidence that a public organization is acting in the publicâs interestâas conceptualized by the public itself.4 This perceived legitimacy promotes civic cooperation and compliance with the agencyâs activities and directives.5 It reduces cynicism and increases public support for agency policies.6 Agencies foster legitimacy in several ways, but most productively by ensuring procedural justiceâtreating people with respect and dignity in an open and neutral manner7âand acting consistent with societal values.8
It may seem odd to consider the public bureaucracy in need of protection, but if we are to grant sweeping religious exemptions that apply to individuals as both citizens and employees, then the publicâs perception of its government risks diminution due to observed harm resulting from public employees expressing their right to avoid performing tasks to which they object on religious grounds. This can either be a first-person observation, or one experienced through social media. Two recent incidents in the policing context illustrate this point. In Philadelphia, a Starbucks employee called local authorities when two African-American males sat down in the coffee shop, would not make any purchases, and then refused to leave. The responding officers repeatedly asked the individuals to leave, per the request of Starbucks, but they continued to refuse and were subsequently arrestedâall the while patrons were recording the incident and sharing it online. The online video was viewed over 10 million times within a short period after the incident. Not only did it generate a public backlash against Starbucks, but also against the City of Philadelphia Police Departmentâwhich subsequently issued a policy for handling trespassing arrests.9 The departmentâs perceived legitimacy was undoubtedly impaired to some extent, but was it fair? True, officers have arrest discretion, but in the case of trespassing, when those in control of the property want the offender removed, could they have reasonably just walked away because they determined that Starbucks was acting unreasonably? One could see that scenario being far more damaging to perceived legitimacy if residents begin to wonder if their calls for assistance will be ignored. This is an instance where law enforcement was being responsive to the citizenry, and appeared to be enforcing the law in a procedurally just manner, yet they still paid a price from a legitimacy standpoint.
Less than a month later, the Yale University Police Department would experience an almost identical incident. At Yale, police were called to a university graduate student apartment complex by a tenant that observed an African-American female that she did not recognize sleeping in the common area. University police responded and it took several minutes to conform her identity due to a name difference between her ID card and the Yale database, but once confirmed, the officers wished her a good night and departed. As is now typical, the opposing students recorded the encounter and shared it online, which resulted in a significant public outcry.10 As with Starbucks, what were the alternatives for the officers? In this case no arrest was made, yet many faulted the officers for either indulging the complaining student by investigating, or by the length of the interaction to confirm the sleeping studentâs identity. University police have an obligation to ensure the safety of those on campus, and if someone calls them alleging that there is a trespasser, then officers have an obligation to follow through on confirming identity. It was not law enforcementâs fault that the student elected a name for her ID card that differed from her student record, and this was the only reason for the extended encounter. Again, if the police had done anything less, the public would have been just as, if not more, offended. The point of these two examples is to highlight how the public administrator operates in a hypersensitized, technology-saturated environment when compared to the past. Not only must administrators be concerned for errors in judgment that will affect legitimacy, they must also be cognizant of the potential for adverse public reactions to administrators doing what is asked or mandated of them. In the case of mandated religious accommodations, administrators cannot just be concerned with meeting their legal obligations to employees; rather, they must also be prepared for the potential negative public response to observing the accommodationâs application.
Few would disagree that dignitary harm will sometimes result from employees exercising their religious recusal rights. In the past, such offense would be limited to a small group of individuals, but today such incidents have the potential to go viral, like those above, with a vast audience becoming aware. Unfortunately, for the government entity, the legally mandated religious accommodations may be erroneously perceived as condoning the employeeâs beliefs, thus creating perceptions of a lacking commitment to equal protection, or worse, as outright hostility to certain groups.
Public faith in its government and its administration is already weak, and further impairment from an avoidable harm should not occur. Legislators, if they insist on passing new religious belief protections, must understand the unique and fragile nature of public administrative legitimacy. Title VIIâs existing framework for accommodating employee religious belief and expression works. Recent proposals to change this standard are solutions seeking a problem. Rather than âsolvingâ a nonexistent problem, this book intends to show how such proposed expansions of religious accommodation obligations will weaken citizen perceptions of administrative legitimacy and will trigger far greater concerns for those responsible for effective administration.
Post-Obergefell Political Mobilization
The first major shot across the bow was the Supreme Courtâs Windsor decision invalidating the Defense of Marriage Actâs federal definition of marriage as being between one man and one woman.11 Religious conservatives knew it would be a matter of time before state restrictions on same-sex marriage would either be overruled by the courts or at the ballot box, but few predicted the swiftness of Obergefell changing the landscape. Though many disapprove of the Courtâs decision,12 acceptance of same-sex relationships has continued...