The Flight Attendant and the County Clerk

For what seems to be the last long while, many of us have been following
the story of Rowan County KY Clerk, Kim Davis who, for personal religious
reasons, has refused to issue any marriage licenses since the June US
Supreme Court decision holding that prohibiting marriage between same-sex
couples is unconstitutional. Davis also forbade her staff to issue any
marriage licenses. Davis defied a federal court order to issue marriage
licenses, was charged with contempt of court and went to jail for several
days. Her staff began issuing licenses when she was taken to jail, and as I
write this, Davis, now released because her staff is doing its job, is on a
short leave before returning to work. As far as we know, she will continue
to refuse to issue these licenses. Whether she will interfere with her
staff’s doing so and end up back in jail remains to be seen.

Last week another story emerged about Muslim flight attendant, Charee
Stanley, who was suspended from her job because she refused to serve
alcohol on the grounds that her religion forbade it. The two cases have
been held up as examples of unjustifiable violations of religious freedom.
But these cases are not comparable in the relevant ways, and I’ve yet to
see a really good article in the news explaining this in any detail.The
main difference, and it is of the UTMOST importance, is that Kim Davis’s
position as a county clerk makes her an agent of the state. When, in that
capacity, she or any of her staff by her order, refuses to issue marriage
licenses, she uses the power the state has invested in her to discriminate
against those who are entitled to have the state recognize their unions
and, with this, are entitled to all the legal benefits (and burdens) that
attach to persons’ legal status as married.It is this discriminatory abuse
of state power that distinguishes the clerk’s case from the flight
attendant’s case and that makes the Davis refusal so egregious. Charee
Stanley is not an agent of the state, so when she acts, she does not act as
the state itself. When Kim Davis refuses to grant a license to marry, the
state refuses. This cannot be allowed to happen because the state must
ensure the equal treatment of all its citizens BY THE STATE. Charee Stanley
simply does not have the authority to act for the state.But it doesn’t
follow from this that the Stanley case doesn’t raise serious questions. A
few months ago, Jack Phillips, a baker, was found by a Colorado court to
have illegally discriminated against a gay couple when he refused, on
religious grounds, to bake a wedding cake for a gay couple. Like Charee
Stanley, Jack Phillips is not an agent of the state. Is there any relevant
difference between the Stanley and Phillips cases?One important difference.
very clearly set out in the law, is that Jack Phillips refused a public
accommodation to members of a class of people explicitly protected by
Colorado law, which prohibits providers of public accommodations, including
business such as Phillips’s cakeshop, from refusing service based race,
sex, marital status, or sexual orientation. This is an important difference
because, unlike Stanley, Phillips violated explicit law.

Now one of my friends has argued that Stanley discriminated against someone
wanting to drink. I get this argument. But I don’t find it compelling.
First, her refusal to serve alcohol is not in violation of explicit law.
But more importantly, Stanley’s refusal, as far as I understand it, was
based strictly on an explicit instruction of her religion, forbidding a
very specific action -- serving alcohol. In refusing to bake a cake for a
gay couple, Phillips said that this is the policy he has set for his shop.
But his shop operates because it is licensed by the state to operate. So
the difference here is that Phillips acts as a business licensed by the
state, and subject to the law of public accommodation. Stanley, on the
other hand, acts soley as an individual. One might not condone her action;
but there is nothing in it involving the support of the state.So, I want to
suggest that in this one way, the cases of the baker and the county clerk
are importantly similar because of their relation to the sate, while the
case of the flight attendant is different.

Should Stanley have been suspended by the airline for not serving cocktails
(as she was and still is as I write)? I don’t have a hard and fast opinion
on this. The airline had accommodated her until a fellow worker complained
that she was not doing her job. After that complaint, the accommodation was
withdrawn, and Stanley was suspended. I guess if Stanley’s coworkers are
seriously overburdened by having to pick up Stanley’s work with no
compensation of any sort, that’s an unfair burden. But if an accommodation
protects the coworkers from such a burden (e.g., by agreement that Stanley
will do extra things to compensate her coworkers), then there is no
injustice in the accommodation.More importantly, from my perspective, (and
with all due respect to those who will disagree), Stanley’s refusal to
serve alcohol doesn’t discriminate against any persons. Davis’s and
Phillips’s refusals do. To my mind, that’s what counts in all of this, and
given the news stories that I have read about the complaint lodged against
the stewardess, I’m strongly inclined to believe that the complaint itself
is an instance of discrimination against a person.
[image: Joan Callahan's photo.]
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[image: Joan Callahan's photo.]

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