So, I expect this story about the Muslim flight attendant who was suspended for refusing to serve alcohol will be blowing up on my Facebook page but the time I finish my 3 hour train ride home.
Charee Stanley, the Muslim flight attendant, is arguing that the airline should be required to reinstate a "reasonable accommodation" for her beliefs.
According to Stanley she is a new convert to Islam and only realized she wasn't supposed to sell alcohol this year. The airline told her to make arrangements for other flight attendants to serve alcohol instead of her.
This apparently had worked fine for quite some time, until one of her coworkers complained, saying that she wasn't fully performing her duties and -- I'm not kidding -- that she wears a headdress and has a book with foreign writing.
Seriously, the airline saw this complaint and thought
"Let's fire the Islamic woman and do nothing about the blatantly
racist flight attendant?" It's not the objection on the alcohol sale issue,
but the inclusion of the "foreign writing" and headscarf in the complaint that makes it clear
this was about a lot more than just Stanley doing her job.
Who the hell is running that human resources department?
And can someone please reassure me that that person has not been fired?
Unless of course they handle complaint of French-language books the same,
in which case I expect ExpressJet is in serious trouble with Québécoise?
The airport suspended her, and Stanley is arguing she should be allowed to continue the arrangement by which another flight attendant serves any passengers requesting alcohol. Stanley (through her attorney) claims this was a reasonable accommodation for her religious beliefs and that the removal of this accommodation amounts to discrimination against Stanley based on her religious beliefs.
Now, of all those Facebook posts I expect to see, about half the posts will say something like, "See, American Christians - do you respect the right of a Muslim woman to her religious beliefs?"
The other half will point to any protection Stanley receives as evidence of the "persecution of Christians" and decry American liberals for "prioritizing the rights of Muslims over Christians."
Part of what I want to do with this blog is to use opportunities like this to explore the legal issues in non-technocratic language.
If I post about this on Facebook, my phone will ring throughout the night with notifications. So I'm posting here, and hoping my friends will use the comments section below instead of Facebook to tell me how much they agree / disagree with my reasoning (thereby saving my phone's battery power and ensuring I can get a good night's sleep).
This is one more thing I'll blame Kim Davis for.
For those who are right now wondering who Kim Davis is (be thankful you have already been spared endless Facebook posts), she's a rural Kentucky country clerk who has been arrested because she refuses to provide licenses for gay marriages.
Her refusal to issue such licenses sits in direct contravention of the US Supreme Court's ruling (link to case) in Obergefell v. Hodges (link to wikipedia), which concluded that US federal states could not discriminate on the basis of sexual orientation in the issuing of marriage licenses.
Davis, however, is an Apostolic Christian who believes gay marriage is wrong. Since she's not allowed to discriminate on the basis of orientation, she's decided to simply refuse all marriage licenses in her county.
By the way, it's not just that she's refusing to directly issue licenses; she's refusing to let any of the 6 deputies issue licenses as well, apparently because her name is the one that has to appear on the license, even when she isn't the one to sign the license.
Four couples - two gay, two straight - sued, asking that she be forced to do her job. She said she didn't have to because her strongly held religious beliefs were protected by the US Constitution's First Amendment. The First Amendment says:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
People often thinks this means they can never be required to act in contravention of their religious beliefs. That's not actually what it says or does.
A federal district court judge where the complaint was filed found Davis was violating the US Constitution and ordered her to issue marriage licenses.
She decided to appeal this decision, and sought protection for a federal appellate court. That appellate court rejected her request for a stay, which would have allowed her not to issue marriage licenses, finding she had no legal claim and was unlikely to win on appeal.
Finally, she appealed to the US Supreme Court - the same one that found a constitutionally protected right to get a marriage license on a non-discriminatory basis. Shockingly, they also determined she was unlikely to win on appeal and that she should do her job.
When she continued to deny marriage licenses, she was arrested.
Now, Charee Stanley's lawsuit seems to be based on similar claims to Davis's. People will inevitably compare the two. They shouldn't.
Both of the arguments I mentioned above -- that American Christians should be as outraged by the action against Stanley as they are about the action against Davis, and that this is continuation of the persecution a giant Christians -- are missing an important distinction between Davis and Stanley. That difference is that Stanley is not acting on behalf of the state.
Let's go back to that First Amendment provision. It does not say "deeply held beliefs shall be respected." It says that "Congress shall make no law respecting the establishment of a religion or abridging the free exercise thereof."
The Constitution - and international human rights law - protects an individual's beliefs and actions as a private citizen from action by the state.
But Kim Davis isn't acting as a private individual; she is acting on behalf of the state.
If she were a private individual -- a minister, an imam, or just some random woman on the street holding homophobic signs -- her deeply held religious beliefs would be protected against police action. She could refuse to perform marriages.
By assuming a governmental role, though, Davis becomes the state. As a result, it is protection against her oppression that the Constitution protects.
While operating as part of the state, Davis's religious beliefs no longer trump other obligations and she cannot impose her religious beliefs on others. That's part of the protection against the "establishment" of a Church.
The First Amendment, while explicitly referencing Congress, has been interpreted to extend to federal states and through states to other, lower state agents (like county clerks). So, the state itself -- and all its agents like Davis -- are prevented from acting in a manner that seems to establish a state religious belief. This includes a prohibition on denying others civil rights because those rights do not align with the beliefs of an individual state agent.
On the other hand, neither Stanley nor the airline are state agents.
Her claims are governed by federal law, which prohibits religious discrimination in employment, and requires that reasonable accommodations be made where an employee's religious beliefs could interfere with routine job requirements.
This does not mean that all religious beliefs or actions are protected. Employers can refuse to accommodate religious beliefs if it is unreasonable, meaning it causes an "undue hardship."
So, if I run an winery and have someone who is employed as a sommelier and that person becomes a Baptist who no longer believes in consuming alcohol, I am not obliged to continue employing her as a sommelier. Similarly, if I open a shop that only operates on Saturday and an Orthodox Jewish person applies and says "I can't work on Saturday," I'm not expected to expand my operations just so he can be employed.
In these cases, there's no way for me to make a reasonable accommodation that simultaneously satisfies my employment needs and their religious beliefs.
The question for Stanley's case is: how important is it that she serves alcohol?
I think this is best answered by the announcement on my last SAS flight: flight attendants hope to help us have a pleasant journey but they are primarily there for our safety.
If ExpressJet had a policy by which flight attendants were bartenders, one could argue Stanley's job could not reasonably accommodate her religious beliefs.
Or, if Stanley said she would serve alcohol (or allow it to be served in her presence) but only upon giving each customer a lecture on the importance of allowing Allah to guide their life, then the airline could say that's not a reasonable accommodation.
Similarly, if every ExpressJet flight had just one flight attendant and the sale of alcohol remained a part of their money-making initiative, then Stanley's refusal to serve alcohol would adversely affect her job performance and there would be no way around that.
But, I've flown many flights, including super short ones in tiny little aircraft, and I've never been on a flight with a single flight attendant.
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| The view from the window of one of the many short flights I've taken. |
Even if there are some such flights, it's doubtful there are a lot of such flights, or else Stanley's racist colleague wouldn't have realised she didn't sell alcohol herself. So ExpressJet should have been able to devise a schedule by which Stanley doesn't have to sell alcohol herself.
Stanley and Davis aren't the same case. They aren't even comparable. Davis was acting a state agent; Stanley wasn't, and her employer could reasonably accommodate her request. As a result, Stanley has a legitimate claim to religious freedom but Davis doesn't. And the difference in their religions has nothing to do with that reality.
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