Ignorance of the Law is No Excuse

In the past few weeks, we’ve seen headlines about a Kentucky county clerk who was sent to jail briefly, because she refused to issue marriage licences to same-sex couples, based on her religious beliefs.

As with virtually every recent controversy on this subject, this one led to an huge amount of rhetoric by people who lack even the most rudimentary understanding of what the laws regarding religious liberty entail.  There is the old adage that “ignorance of the law is no excuse”, and that certainly applies here — the law of religious liberty is really not that hard to learn and understand.

The most egregious example of public, culpable ignorance can be found in a recent article by a physicist, who entitled his piece “All Scientists Should Be Militant Atheists”.  I generally couldn’t care less what a militant atheist might say.  But I couldn’t resist commenting on one thing the professor says in his screed, namely:

To what extent should we allow people to break the law if their religious views are in conflict with it?

There’s another old saying, “A man has to know his limitations”.  I am a lawyer, and I know virtually nothing about physics.  I therefore have the good sense not to write a single word about physics, pretending that I know what I’m talking about.  Would that the professor had the same sense, and refrained from pretending that he knew the first thing about the law.

This is really not that difficult.  The laws of the United States — including the First Amendment to our Constitution — are actually quite clear in recognizing that the government cannot easily impose laws upon people when they conflict with the person’s religious beliefs.  In other words, when a person claims a religious exemption, they are not breaking the law, they are merely asserting their basic human rights.  If the government or a private person fails to recognize that exemption, they are the ones who are breaking the law, not the religious believer.

A very clear example can be found in the Hobby Lobby decision, in which the Supreme Court held that the federal government violated the Religious Freedom Restoration Act by not recognizing that the company was exempt from the HHS contraception/abortion mandate, due to their religious beliefs.  Or in the hundreds of civil lawsuits where employers are required to recognize religious holidays or clothing, cities are banned from restricting street-corner evangelists, schools are prevented from closing religious clubs or newspapers, etc.

And it doesn’t stop with the Constitution.  Title VII of the federal Civil Rights Act, a law that has been in effect for over forty years, utterly rejects the idea that an employee has to surrender their religious beliefs as a condition of keeping a job.  Instead, it imposes a duty on the employer to exempt employees from work requirements that conflict with their religion, so long as that does not impose an undue hardship on the employer. In other words, for the last four decades, employers are required by law to make reasonable accommodations for their employees, not vice versa.

Similar statutes exist in every state, and in many localities.  Here in New York, our state Human Rights Law has been in existence for about seventy years.  It explicitly imposes on employers a duty to make reasonable accommodations for sincerely-held religious beliefs.  There are also other many other laws that protect religious liberty from government imposition.  Most notable are federal and state Religious Freedom Restoration Acts.   One time, I counted the number of religious exemptions recognized in New York law, and managed to find about two dozen.  More legislation is being proposed, such as the First Amendment Defense Act.

In short, the law protecting religious liberty is well-established, and can be easily accessed and understood.  Certainly a person who opines on the law in a public forum should be expected to inform themselves of these basic facts.

So it’s hard to chalk these kinds of statements and arguments to good faith ignorance.  Rather, it seems more likely that the person is inveterately hostile to religion, and, due to this animus, will not even consider the facts or arguments that stand against their position.

I think, if you were to consult a dictionary, that would be a pretty good definition of bigotry.



5 Responses to “Ignorance of the Law is No Excuse”

  1. Peter Rox says:

    So, if a Moslem head of the Department of Motor Vehicles decided not to issue driver’s licenses to all women, because of deeply held religious belief under Sharia Law (as in Saudi Arabia) , and did not authorize any other person in the entire Department to act, and furthermore insisted that no license issued by anyone else was valid, that this is lawful? It is one thing to not take direct action oneself, and a very different matter to attempt to subvert an entire office or department of government from acting legally. There is a difference between practicing one’s religion, and forcing it on others.

    If a Catholic works at McDonald’s, may he or she claim that they can not sell hamburgers on Good Friday. and still demand to get paid?

    I believe that public employees need to serve all members of the public, and this is how the law has been generally interpreted, with extremely tiny exception.

  2. Ed Mechmann says:

    No, that is not how the law has been interpreted. Title VII protects the religious liberty of public and private employees (but not elected officials) and requires the employer — not the employee — to make accommodations. New York’s Human Rights Law does the same. Employees routinely and regularly win these cases. So do prisoners — the Supreme Court ruled unanimously this year in favor of an inmate who wanted to grow a beard for religious reasons, despite the prison’s desire to enforce a universal grooming rule.

    You may disagree with the policy behind these laws, but the debate was settled many years ago in favor of giving the benefit of the law to those who are asserting their religious beliefs.

    Don’t just believe me, believe Eugene Volokh, Professor of Law at UCLA and one of the leading First Amendment scholars in the US: https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/09/04/when-does-your-religion-legally-excuse-you-from-doing-part-of-your-job/.

  3. DottieDay says:

    If a nurse does not want to participate in an abortion (federal since 1973) at a public hospital because of her religious beliefs, is she subject to immediate arrest and sent directly to federal prison? Whatever happened to what a non-lawyer like myself might call “due process”? From refusal to federal lockup? Huh?

  4. Ed Mechmann says:

    No, there wouldn’t be criminal penalties. The nurse has conscience protection under federal and state laws that would protect her from being disciplined or discharged by the hospital. And, lest anyone think that this doesn’t happen, there was a prominent case here in New York a few years ago out of Mt. Sinai Hospital, where the hospital intimidated a nurse into participating in an abortion despite her religious objections, and she eventually won protection of her rights: http://www.adflegal.org/detailspages/case-details/cenzon-decarlo-v.-the-mount-sinai-hospital.

  5. DottieDay says:

    So an elected clerk has no conscience protections in her job because she is elected? She either does what Aunt Sam tells her or she is guilty and hauled off to jail immediately? I suspect too that we will never have a conscience case with any elected official in New York — you can’t run for office here if you have a conscience.