Tuesday, September 08, 2015

Judicial Review and Religious Freedom

I'm not a lawyer, so my lawyer friends out there might correct some of this for specificity, but overall the concept of judicial review is pretty simple. We all got, in school, the three branches of government: Legislative (Congress and various state and municipal bodies) makes the laws; Executive (President, bureaucracy, etc) enacts the laws; Judicial (court system) interprets the laws.

Interpreting means figuring out if the ways the Executive branch has enacted and enforced the law is itself legal. The Supreme Court, the highest court in the land, has a slightly different mandate. They do indeed rule on issues of legality in regards to enactment and enforcement, when necessary, but they're also looking at the legality of the law itself - also known constitutionality. Does a given law, passed by the Legislative branch, line up with the Constitution.

So, while it's absolutely true that no court can make a law (only the legislative branch can do so), the Court can nullify a law, essentially erase all or part of it, because that law is itself illegal. The judicial branch can't make laws, but they can change laws by removing parts of them - that's been the case since the beginning, pretty much.

There are some sketchy areas of off-books checks and balances along the way (check out what FDR did with some washed up Germans in 1942), but generally this is how things go. The only way to overturn a Supreme Court ruling is to either get them to change their minds (which happens when new members show up or people have a change of heart) or to pass a Constitutional Amendment (which is ridiculously hard to do).

The law of the land is whatever the Supreme Court says it is. The Constitution says whatever the Supreme Court says it says. Of course people will argue and disagree and sometimes the Court will be right and sometimes the Court will be wrong, but the Court is always the final say. That's how our system works and how it was designed to work.

The way someone gets the Court to decide something is, basically, to break the law. Now for things like theft and assault and tax evasion, the law is pretty much settled - the Court has long ago decided the legal questions surrounding most things (although sometimes you'll get a special circumstance or consequence that begs for fresh eyes). Largely, the judicial review process that been pretty thoroughly worked through for most older laws.

New laws, though, continue to be reviewed - it's how we decided whether those laws themselves are legal or not.

Gay marriage has been a series of laws almost entirely decided in the courts. Years ago, civil servants in a number of municipalities started granted marriage licenses to same sex couples in attempts to begin a judicial review process. They were sued and went to court and, for the most part, lost. When the courts ruled against them, they went back to issuing only legal licenses.

This is much the same with the Kentucky case of late. Once the Supreme Court nullified any law prohibiting marriage of same-sex couples, a county clerk refused to issue marriage licenses at all because she could not, in good conscience, issue licenses to gay couples. She was sued. The courts ruled against her. She appealed and asked for a stay. A stay is essentially, permission from the court to keep breaking the law until an appeal can be heard. Her petition for stay was denied - meaning, she had to grant any legal marriage license. She refused to do so and was found in contempt of court (basically she ignored or refused a court order). She was jailed for this, as is procedure. You see this a lot for say, journalists who refuse to give up sources. Sometimes people spend a very long time in prison for contempt issues. The Kentucky clerk will be in prison until she either resigns or agrees to allow other people in her office to give out marriage licenses.

That last sentence has an important word - allows. This isn't about one person's individual choice - it's about a boss speaking for her office. There are six deputy clerks in that particular Kentucky county, five out of the six are more than happy to follow the law and give licenses as appropriate. The clerk was refusing to do so, since her signature is on all of them - whether she personally gives them out or not.

The one deputy who's refused to give licenses to gay couple (the clerk's son, by the way) will never be in danger of prison. The law only states the office has to give the license, there is room both in law and in practice for someone to pass that responsibility to another member of the office if they feel their conscience is violated. One clerk can simply have another clerk grant the license.

This is what we see in the other lawsuit making waves this week - a Muslim flight attendant is suing her former employer for firing her over her refusal to serve alcohol (against her religious beliefs). The argument is simply that the airline didn't make enough effort to accommodate her beliefs. She may be right - a court will decide.

There's a fine line between reasonable and unreasonable accommodation. A pretty small percentage of a flight attendant's duty is serving alcohol, it might very well be reasonable to pass that duty off to someone else. Whereas is she worked in a bar, it might be very unreasonable to require her employer keep her on if she wouldn't serve alcohol. This is precisely the kind of thing judicial review is designed to figure out: where to draw that line.

In the coming days and years, we're going to see the courts draw a lot of those lines - can a business refuse service to someone based on sexual orientation - or maybe refuse some specific services, but not all? Lines will be drawn and laws will be defined. All of this is legal and traditional and in line with the historic arc of American jurispreudence - it's the same system that battled racial segregation and defined the terms of religious freedom in the first place (check out Engel v Vitale which saved us from being legally required to recite government authored prayers in public).

The problem I continue to see for Christians (also for Muslims and Jews, although Christians seem to be the most upset about things) is that Christian tend to view the law as an arbiter of moral right and wrong. If something is legal, it's ok to do; if it's not legal, it's bad.

We really, really, really need to get away from that notion. It's never done us any good and it's, in many cases, really damaged our understanding and practice of the gospel. Christians are not called to change the world through government and elections - we are called to be different, an example of a people who love without ceasing, love everyone - even those who wish to do us harm, and love even to the point of giving our own lives. The world be changed, we proclaim by faith, through the love of God working in our lives to show people a better way. Christians are called to be an alternative community to the ways of the world, not to try and shape the world to our predilections and in so doing, lose our very Christian nature.

It is not what we do that makes us distinct, but the way in which we do it.

Forcing people to cow to my views or bringing lawsuits or demanding rights are the exact opposite of the gospel of Jesus Christ. Christians are not vindicated by courts or governments or elections. That's just not how it works. Judicial review is the law of the land, but it's not some moral arbiter. We'll agree with some court decisions and disagree with others. Interacting with the large society will sometimes create conflicts - in those instances we have a choice: fight or sacrifice. Christians never choose fight; it's not the Christlike way. Christ went to the cross in love, not with anger on his lips.

No doubt the Kentucky clerk's decision was difficult. She was choosing between prison or the loss of her job and livelihood. I believe the Christian response in such a situation is to sacrifice your job, trusting in the God who created the universe (and those people who love you) to provide for your needs.

We don't need to fight in courthouses, because the results of those decisions have no moral bearing on Christian life. We cannot cry persecution if Christian participation in the large society is blocked or hindered. That's simply not persecution. We have the right to free exercise of religion, not the right to incorporate our free exercise into the large society. Persecution may come for us in the US, perhaps, some day - if our private life and worship is ever infringed upon. I don't see that likely in this country, but should it come about, we should take the words of Jesus to heart - rejoice and be glad, for in the same way they persecuted the prophets who were before you.

1 comment:

Alan Scott said...

If she was jailed, shouldn't the mayors of sanctuary cities be jailed for not enforcing federal statutes that they disagree with? I am not sure any have been. Shouldn't they have just resigned their position instead of enforcing Federal statutes they believe are wrong. Also, couldn't her stand be a Christian self-sacrificing act on behalf of others to protect them a state sanctioned wrong action(from her point of view)?