Follow the Law or Your Conscience?

3.9 Follow the Law or Your Conscience?

Controversies: 3.12, 3.20 Key Words: civil servants, law, same sex marriage, California, religion Case Complexity → High CD: 4.31 Citizen-Client-Customer CD: 6.2 International City/County Management Association Code of Ethics

Suppose you are a county clerk who works in an office that has responsibility for processing same sex marriage licenses in California. (The California Supreme Court ruled that the state’s law barring gays from marriage was unconstitutional.) You feel strongly from a religious perspective that same sex marriages are immoral. Do you have an obligation as a civil servant to issue the licenses? Or, does this violate your conscience to the point that you refuse to do it?

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Discussion Questions

1. Do civil servants have the right based on religion to pass judgment on the “correctness” of the law?

2. Should clerks who refuse to issue licenses to gays lose their jobs?

3. If you were the head of the county clerk’s office and employees tell you they don’t want to follow the law, what would you do?

Commentary

Karl Thoennes III, Judicial Circuit Administrator, Unified Judicial System, State of South Dakota:

Th e same sex ceremony issue is just the latest variation of a public service situation that’s been around for years. I don’t see why it’s any different,

really, than prison employees in death penalty states who oppose capital punishment. They’re generally not compelled to participate in execu- tions. Court employees and even some judges have sometimes objected to handling abortion bypass cases (those petitions where minors are seeking the court’s permission to skip parental notification), although I know accommodation has varied around the country in those situations. My previous position with the courts in Minnesota included performing civil wedding ceremonies. I had a similar struggle with wedding requests where the couples wanted to include “Wiccan” practices. Luckily there were lots of other civil ceremony officiates around, so my declining to perform those few ceremonies really made no practical difference to the public. Similarly, death penalty states simply assign other prison employ- ees to executions. Likewise, the military allows conscientious objectors to choose alternative forms of service. I’m pretty sure there will be no shortage of religious and civil officials in California willing to perform those ceremonies, so I don’t see why we shouldn’t make some accommo- dation for religious or moral objections on this issue, when it makes little or no practical difference in the delivery of public services.

I know, there’s the old slippery slope issue, do we let public servants pick and choose their duties and tasks based on subjective religious claims, etc. If they have moral or religious objections to some of the job tasks, then they shouldn’t have taken the job or the oath office in the fi rst place, etc. On the other hand, no public employee that I know of is required to perform every single duty he is necessarily authorized to per- form. We routinely divide labor to some degree in even the smallest rural local governments. I also wonder if those who are so deeply offended and shocked at public employees who want to decline performing same sex ceremonies also think all prison staff should be compelled to participate

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in executions or conscientious military objectors should be compelled into combat because, after all, it’s a public duty under the law.

Finally, if we do want to draw hard lines about public duty, imagine how recruitment bulletins for public jobs would read if we really wanted to be frank with applicants. “Ardent Catholics, pro-lifers, Baptists, Christian fundamentalists, pacifists, and all others who oppose [abor- tion, capital punishment, dispensing abortion-triggering medication, same sex marriage, choose your hot button issue depending on the job...] and who cannot set aside their most deeply held moral or reli- gious beliefs for the sake of a public job need not apply.”

Posted on the ETHTALK listserv (anonymous)

I’m extremely religious, and I’m a public servant. My obligation is to my faith first, then to the public … Therefore, George Washington’s prayer for the U.S.A. is a predominant display in my office (you can’t help but see it even before you enter). The more subtle Ecclesiastes is also a dominant “decoration.” I’ve had this discussion with colleagues before because a majority opposes these … outward displays. If there is something that directly interferes with my obligation to my faith and my service to the public, then I really do need to have someone else do it, or just don’t and offer options.

I would have to side on religion in this case, if the carrying out of the public duty destroys a person’s ability to reconcile what they do with what they are. We can never predict what rules, laws, or court cases will come about in a person’s work history. So, the assumption is that the clerks were working under one set of predicated understanding of their duties. When that changed, I think they should have the ability to bow out. There are … local governments that refuse to provide a day off on MLK. Call it racist, call it religion, call it rebellion. It’s their preroga- tive. Thus … my inclination is to trust the civil servants. Provide that prerogative. You may be surprised how many (after some time) are able to reconcile and get the job done anyway. Further, we are talking about the “ends,” not the means. If, at the end of the day, the duty gets accom- plished, then let it go (regardless of who does and does not do it).

And, we don’t necessarily “back” anybody (despite the first state- ment I made in the last paragraph), we back the ability of government to still carry out its duty.

John Petter, ASPA member and Doctor of Public Administration, Springfield, Illinois:

It’s amusing to me that the surface issues change (Jim Crow laws, abor- tion, capital punishment, interracial marriage, morning after pill, …)

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but the fundamental challenge for all individual public administrators to balance differing ideas of what is appropriate behavior remains.

Th e ASPA Code of Ethics rightly reflects varying principles of what is ethical (e.g., public, personal, legal), providing material for some excellent classroom discussions. But it doesn’t fully recognize these ideas of responsibility sometimes give opposing guidance, nor does it provide much direction in how to balance those ideas when they conflict.

Conflicting types of responsibility cannot be resolved easily or universally. A public servant in the Third Reich may be forgiven for not foreseeing the unthinkable, yet he or she must be held responsible even though acting as a good law-abiding and subordinate public ser- vant. I have elsewhere suggested eight types of responsibility: moral, professional, hierarchical, leadership, fiscal, legal, consumer, and pub- lic. Teaching differing types of responsibility without also teaching they sometimes conflict should be considered public administration malpractice.

Th e practical result is that we must make exceptions when there are conflicts; for example, allowing for matters of conscience (moral

responsibility) despite an organization’s bureaucratic routine (hierar- chical responsibility), allowing for meeting clinical needs (professional responsibility) despite budget limitations (fiscal responsibility), allow- ing for providing service to a needy individual (consumer responsibility) who doesn’t quite meet the statute’s requirements (legal responsibility).

At the same time, we must not overemphasize any of them; for example, allowing for service provision to needy individuals with disre- gard for any statutory requirements, allowing for building large clinical systems without recognition of the financial costs involved, allowing for lightly-held “feelings” to overrule departmental policies.

To always emphasize the need to follow bureaucratic routines or case/statutory law to avoid the feared chaos that may result, or to always emphasize the need for moral or professional morality to avoid the neu- tering of personality and religion, are illogical and unreasonable. It would also prevent the discussion that is necessary to help each of us public servants perform our duties and to evaluate the performance of others, when called to do so.

Michael Vocino, Professor, University of Rhode Island:

In California it is now illegal to deny gay Americans their civil rights, including marriage rights. Because a person religiously may believe something different than what the courts have decided makes not one wit of difference … it’s still illegal to have more than one wife even

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if you believe it is a commandment of God, as the fundamentalist Mormons in Texas have discovered … believe what you will but follow the law … not to do so if you are a county clerk in California is illegal and un-American.

If, as a public manager or public servant, that is not possible for you as a believer, then you must choose between what is required of your work as a public manager dedicated to equal rights under the law, or you should find work more in line with your religious beliefs or moral code and happily lead a life that does not interfere with your particular moral code.

Terry L. Cooper, Director, Civic Engagement Initiative, School of Policy, Planning, and Development, University of Southern California:

If one cannot carry out the routine duties of one’s office, resignation is clearly required, but public managers who are so rigid as to refuse to address unusual situations that may occur from time to time will have

a difficult time functioning effectively in the complexity of American society. I really thought we had gotten beyond the kind of dichotomous thinking I see in some of the comments in this exchange. Ethics has to do with going beyond the law, or carrying out the spirit of the law, or dealing with situations that are not clearly covered by law. From an ethicist’s perspective, law is generally viewed as the moral minimum that we can agree to broadly, and sufficiently to impose on all. I believe we must respect and uphold that moral minimum, but the reason eth- ics emerged as centrally important in the mid-1970s was the growing recognition of the necessary exercise of discretion by public administra- tors. If our responsibility is only to do what is legally prescribed, then in many instances we will either be unable to act or unable to address the particularity of diverse situations.