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A little-known case just concluded this week, but it may have big implications for the important national dialogue about conflicts between faith and sexual identity. In Myrick v. Warren, a federal judge ruled that the State of North Carolina violated federal law when it forced a magistrate named Gayle Myrick to resign because of her religious beliefs about marriage. The judge’s ruling comes ahead of the Supreme Court’s decision in Masterpiece Cakeshop v. CCRC. Both Myrick and Masterpiece raise important questions about conscience and LGBT rights. This Teleforum will address Myrick v. Warren and its relationship to the broader issue of LGBT rights and religious liberty.
Stephanie Barclay, Counsel, The Becket Fund for Religious Liberty
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Speaker 1: Welcome to the Federalist Society practice group podcast. The following podcast, hosted by the Federalist Society Religious Liberties Practice Group was recorded on Wednesday, February 14th, 2018 during a live tele-forum conference call held exclusively for Federal Society Members.
Laura Flint: Welcome to the Federalist Society's tele-forum conference call. This afternoon, we'll be discussing Myrick v. Warren, a case recently decided in Federal Court concerning gay marriage con- conscious protections. My name is Laura Flint. I'm the Deputy Director of practice groups here at the Federalist Society. As always, please note that all expressions of opinion are of those of the expert on today's call. Today, we are happy to have with us Stephanie Barclay, legal council at the Beckett Fund For Religious Liberty. After remarks from Stephanie, we'll go to audience question and answer. Thank you for staying with us, the floor is yours.
S. Barclay: Thanks to Fed-Soc for having me, and I'm looking forward to talking with you all today about a little known case, that just concluded, and that may have big implications for the important national dialog, about conflicts between faith and sexual identity.
In Myrick v. Warren, a Federal judge recently ruled, in the State of North Carolina, violated the Civil Rights laws, when it forced a Magistrate named Gail Myrick to resign because of her religious beliefs about marriage. This ruling comes ahead of the Supreme Courts decision, in Masterpiece Cakeshop. Both Myrick and Masterpiece raise important questions about conscience and LGTB rights.
I'll dive into the facts of the Myrick case in just a moment. But first, I want to touch on an important macro point in many of these cases. Faith and sexual orientation are deeply important, the identity of many people. Some argue, that LGBT rights and religious liberties are at odds with each other, lost in a zero sum game. Underlying these arguments, as some predicts of religious liberty, is the idea that people of faith are asking for special treatment, privileges, that others in society don't get. And in providing them with special treatment, society wouldn't necessarily be taking away other rights, like LGTB rights.
With the Myrick case, and other cases in this area demonstrate, including Masterpiece, is that, often people of faith are simply asking to be given the same protections as everyone else, in an evenhanded way, and to not be singled out for disfavored treatment.
When religious individuals are given the same protection as others, it is often easy to discover reasonable solutions, that protect the dignity of everyone in our diverse society.
And now for a little more discussion about Gail's case in particular. Gail Myrick was a highly qualified and well respected Magistrate in North Carolina, who always received top performance reviews. As a State Magistrate, she issued warrants, set bails, and a very small portion of her work included performing civil marriage ceremonies.
When same-sex marriage became legal, Gail didn't want to stop anyone from getting married. She also knew that her religious beliefs prevented her from personally performing same-sex wedding ceremonies. Since handling weddings was such a small part of her job, she hoped there was a way to keep her job without violating her convictions.
Gail's immediate supervisor purposed a simple solution, it would simply shift Gail's schedule by a couple of hours. She wasn't even working during the times that marriage ceremonies were performed in the county.
Gail's office let other magistrates shift their schedules around all the time, for lots of reasons. And, Gail's coworkers were happy to cover for her, as Gail had done for them, on many occasions.
This solution would allow everyone to get married without any delay or embarrassment, and Gail could keep the job that she loved. But, the State Government rejected the solution, and forced Gail to choose her faith or her job. She was threatened with civil penalties, and even criminal prosecution, if she wasn't willing to violate her faith. Faced with this choice, she was forced to resign, losing her retirement and her job.
Recently, a Federal Judge ruled, that the State government broke the law, when it refused to let Gail change her schedule. The government, um, the State government also acknowledged, after that ruling, that it had treated Gail unfairly, and recently entered into a substantial settlement to make Gail whole, giving back the pay and retirement benefits that were unjustly taken from her.
The State also passed the law, making sure that no Magistrate would be targeted for their religious beliefs, and no one would be denied a prompt marriage.
This case demonstrates that there are reasonable solutions that can protect the dignity of both sides.
Another recent Beckett victory addresses the same question, of giving people with faith, the same treatment as everyone else, even if their religious beliefs about marriage are unpopular.
The University of Iowa let lots of student groups require their leaders to support their mission. Fraternities, sororities, Muslim groups, feminist organizations, the Korean American organization, and the LGBT Love Works organizations, and even other Christian organization. But they wouldn't let a student group called, BLinC, elect leaders who adhere to a traditional belief about sexuality.
On January 23rd, the court in that case, ruled in favor of BLinC, reinstating that student group on campus, and giving the university 90 days, to either apply it's policy as written, in an evenhanded way, or to allow student groups to select leaders who embrace their mission, and let BLinC stay on campus.
A similar principle of evenhanded treatment is at issue in Masterpiece. Americans make decisions all the time about the types of messages or events they're going to support with their talent, their dollars, and even their businesses. The New York Times recently described the growing "Moral voice of corporate America", after a wave of companies, including Google, Airbnb, Uber and PayPal, sever ties with white supremacist groups in response to the riots in Charlottesville. This phenomenon is not new, nor is it limited to opposing white supremacy.
For years Pfizer has refused to sell some of its drugs to State prisons because the company didn't want to use those drugs for capitol punishment. Chipotle refused to cater a boy scouts jamboree because of the scouts, then policy, about gay scout leaders. A coffee shop owner in Seattle recently refused to serve a group of pro-life activists, ejecting them from the store. And some time ago, a hair stylist in New Mexico decided that he was no longer willing to style the hair of a governor, because of a position she took, that was not supportive of LGBT rights. These business owners all made moral choices about a message or an event they were going to support.
A similar moral choice is at the heart of the case in Masterpiece Cakeshop, which is currently pending before the Supreme Court. The store's owner, Jack Phillips, is a baker who's willing to sell any items off the shelf in his store, to anyone, no questions asked. What he's asking, is not to be compelled to use his artistic talent to create a custom designed wedding cake, celebrating an event contrary to his deeply held beliefs. This is a standard that Jack applies across the board. He doesn't, for example, create custom work that celebrates Halloween, divorce, profanity or racism. Jack is not the first baker in Colorado who objected to using his talents to support something he disagreed with, but he was the first one to be punished for it.
Other Colorado bakeries refused to create a bible themed cake that condemned homosexuality, but in those cases, Colorado upheld those bakers rights, explaining that they shouldn't be forced to create a cake they disagreed with. The State even said, that bakers have a right to decline to bake a cake for the Aryan Nation Church, or a cake denigrating the Quran.
This double standard was the cause of concern for multiple Supreme Court Justices during the recent oral argument in Phillip's case. Justice Alito called it disturbing, that a baker could refuse to create a cake with a message that it opposed to same-sex marriage, but when the tables are turned, Phillips was compelled to create a cake that expressed approval of same-sex marriage.
Justice Kennedy suggested that Colorado officials demonstrated a significant aspect of hostility to religion, and ironically, that the State had been neither tolerant or respectful of, um, Jack Phillip's rule of disbelief.
So, all of these cases, and Myrick's in particular, with its recent conclusion of the case, highlight ways in which, in our diverse society there are reasonable solutions, that can protect dignity of both LGBT individuals and religious individuals, particularly when we work to ensure that people of faith aren't being singled out for disfavored treatment, or, um, being refused other accommodations and privileges that are normally offered, simply because those people of faith have unpopular beliefs about marriage.
The point of our civil rights laws and constitutional protections, are to protect those who have unpopular views, and to ensure that protections are offered, at the very least, in an evenhanded manner.
Thanks, I'd be happy to take questions.
Laura Flint: Let's go to questions from the audience. In a moment you will hear a prompt indicating that the forum mode has been turned on, after that, to request the floor, enter *, then the # key.
When we get to your request, you will hear a prompt, and then you may ask your question. We will answer questions in the order in which they are received. Again, to ask a question, please enter *, then the # key, on your telephone keypad.
While we wait for that first question, I'll ask one of my own. What does the settlement look like in this case?
S. Barclay: Gail was forced to resign just a couple months before her retirement benefits were invested. And the settlement that the State entered, in this case, gives back to Gail, all of the back pay and front pay, that was unjustly taken away, as well as her retirement benefits and other fees.
Laura Flint: Again, to ask a question, please enter *, then the # key, on your telephone keypad.
I'll make a brief announcement. Our next tele-forum conference call is scheduled for Friday February 16th. That call will be on new developments in Wisconsin's John Doe investigations, and will feature Mr. Edward D. Greim, partner at Graves Garrett.
Um, again, to ask a question, please enter *, then the # key, on your telephone keypad.
Um, Stephanie, can you elaborate on how the solution to the Myrick case would work so LGBT people could still get married?
S. Barclay: Sure. So, in Gail's case, Magistrates were on staff, and on-call, 24 hours a day, and they worked in different shifts. Marriages were only performed during set times during the day, limited times, that people had to make an appointment for, in advance. Gail's immediate supervisor was simply saying, "Hey, we can find a solution, that just shifts the time that you're working, just a little bit, and you won't even be working during the set times that marriages are performed at all."
Performing a marriage ceremonies was also a very small percentage of the work that Magistrates performed anyway. And this way, Gail would have been able to keep her job, and the State would have ensured that government services continue uninterrupted, and that no couple who came to obtain marriage services, would face any delay or embarrassment, or rejections. And in that way, uh, the dignity of any couple who came would be protected, and it was a reasonable accomodation that would protect Gail's ability to continue to keep working consistent with her convictions of her faith.
Laura Flint: Let's go to our first audience question.
Man: Uh, hello, this is, uh, Ed Murphy. I'm an attorney in Chicago. Uh, and I was curious, uh, about what would have been the situation in North Carolina, if this Magistrate had not been close to retirement. In other words, would she have gotten her job back? Uh, it just seems like the- the remedy fit her situation, but what if she wanted her job back?
S. Barclay: That's a good question.
The Federal Judge in this case, uh, said that Gail was entitled to get her job back, or pay back, to compensate her for not having her job, and then gave the parties an opportunity to decide what would be best. So, I think, if you did have a situation where you had a Magistrate that wasn't close to retirement, who wanted his/her job back, that certainly was something that the Federal Judge in this case, thought was a fitting remedy, that, um, could be explored. I think that could possibly be true elsewhere as well.
Man: Just to follow up on that. Now, was this, uh, decision based on- on uh, North Carolina statutes, or were there constitutional arguments? What was the- the legal basis?
S. Barclay: The legal basis for this decision was under the Civil Rights Act, particularly Title 7 protection. And what the Title 7 framework says, is that if a protected category, which includes someone for their faith, if someone needs an accomodation in order to keep working, then employers are obligated to try and find a reasonable accomodation, and to explore ways to let people of diverse backgrounds, keep contributing and still be able to, uh, meet their other needs of whatever their diverse backgrounds are.
So for example, under Title 7, we do this sort of accomodation all the time, uh, for other religious groups. Like, if a muslim individual needs to also receive a scheduling accomodation, so that they can have prayer breaks, that's a- that's an accommodation under Title 7.
So we also do this for non-religious reasons. We do this for people with disabilities, or if a- a new parent needs to shift their schedule around. We have accommodated government workers, who are pacifists, and didn't want to, in the Post Office, have to process Draft cards. We have accommodated government workers, who are philosophically vegan, and didn't want to hand out flyers promoting meat products. And of course, there are longstanding accommodations, uh, for government workers, and other workers, who have objections to participating in things like the death penalty or abortions.
So this principle, the employers have to work to accommodate employees, is a good thing for our society, and it allows people of all different sorts of backgrounds, to contribute and to make our workforce a diverse place. And in Gail's case, the judge was saying, not only are those sorts of reasonable solutions good, but an employer is required by law to explore them. And here, because the State government failed to do so, it violated the Civil Rights laws.
Man: I see. That's a- a very, um, a very thorough explanation. Thank you. Is there, um, uh, any appeal from ... has there been, or, is an appeal from this ruling expected?
S. Barclay: No, because after the Federal Judge ruled in Gail's favor, the parties entered into settlement discussions, and that settlement has been entered into, and is final. And the, uh, the [inaudible 00:16:16] was dismissed. And this is a final resolution, and victory, for Gail Myrick.
Man: Yes, I guess you did say that before. Well, thank you very much.
S. Barclay: Thank you. Great questions.
Laura Flint: Again, to ask a question, please enter *, then the # key, on your telephone keypad. Our lines are wide open.
Reminder to keep an eye out for emails, announcing upcoming tele-forum calls, and to consult the full schedule of our upcoming calls on the Federalist's Society website, fed-soc.org.
Also available there, are podcasts of previously recorded tele-forum calls you may have missed.
Let's go to our next audience question.
Man: Hello, this is Andrew Brown in North Carolina. Um, and I was wondering, like the situation here, there was a reasonable accomodation available for the Magistrate, because this case seems to be a little bit different than Masterpeice and that with a government employee, but their situation where there's maybe not a reasonable accomodation available, um, and when the- when different rights are put against one another, um, any thoughts on how that will look, out in the future? Thank you.
S. Barclay: That's also bringing up an important issue. So this is a, as Andrew was touching on, a case where it's decided under Civil Rights Acts, that require employers to make accommodations, and, uh ... Real quick, about that legal framework, employers are required to sort of explore, within the context of that particular office, and those particular circumstances, whether an accomodation would be reasonable. And those are always fact specific inquiries, that look at the particular context and circumstances, of the individual who's requesting an accomodation in that case.
Masterpiece is, uh, raising ... even though similar principles, they're raising different legal arguments, different legal grounds for decision. Masterpeice, primarily, is raising, uh, First Amendment free speech arguments, and, uh, religious exercise arguments. And it's not dealing with a situation, where there's an employer accomodation, but it is dealing with the [inaudible 00:18:27] question, 'Are we going to give religious people the same sort of protection, that we offer to other people, other business owners, all the time? And protect their ability to do that through free speech protections or otherwise.'
And so, for example, in Masterpiece, it is true that, um, there were multiple bakeries in Colorado, who declined to bake a cake with a bible themed message condoning homosexuality, because they- they disagreed with that message. And Colorado, rightly, I think, protected their ability to, as business owners, abstain from promoting a message or an event that was something that they disagreed with.
And Colorado did that, even if it was hurtful or offensive to the religious customer who was asking for that cake, to be turned down, and to be told by those bakeries in Colorado. One of them, that was owned by, uh, gay owners, that they disagreed with the bible themed message, and didn't want to have to create that.
And so, in a similar way, Jack Phillips, the owner of Masterpiece Cakeshop, is saying, "I'm willing to serve any sort of customer, any of the baked goods off my shelf, and to design a number of different goods for them, whether it's a birthday cake, or um, all sorts of other events, but I- I can not design a cake that is going to be promoting celebration of a religious ceremony that goes against my religious beliefs."
And so the question in that case, Constitutionally, is, are we going to give Jack the same sorts of protection that the other Colorado bakeries received? More broadly, are we gonna give Jack the same sorts of protection that, uh, the Seattle, uh, coffee shop owner enjoyed, when he decided he didn't want to have people promoting pro-life messages, be in his shop. Or, the hairstylist, who didn't want to continue styling the hair of a governor, because of a position that the governor took, not supportive of LGTB rights. Or, Chipotle refusing to cater the boy scouts because of their policy at the time, about gay scout leaders.
And in other context, CEOs like, uh, the owner of Starbucks, for example, has talked about the importance of businesses being able to make moral decisions, and uh, and specifically be able to make decisions that aren't just based on their bottom line. The, um ... To make decisions that are promoting, sort of, the American ideal that they believe in.
And the question in Masterpeice, is whether Jack's gonna be given that same protection, either under free speech principles, or religious exercise principles too.
Laura Flint: Again, to ask a question, please enter *, then the # key, on your telephone keypad.
While we wait for our next question, I'll ask one of my own. Um, are there any similar cases going on in the Federal circuits?
S. Barclay: Similar to the Myrick's case ...
Laura Flint: Myrick.
S. Barclay: ... or similar to the Masterpiece case?
Laura Flint: To Myrick.
S. Barclay: I'm not aware of any currently pending cases that are ongoing right now, that are similar to Myrick. This is the first victory for an individual of faith, in this area. And, it's a landmark victory in that way, because it shows that we can protect faith of government workers, even in the thought context of religious liberty and LGBT rights. And we can do so in a way that protects the dignity of LGBT individuals as well.
Laura Flint: And do you think the decision would have been different if the case wasn't heard in an EOC Court? Did that affect it at all? Better than a circuit court or a district court?
S. Barclay: Right. It would have been appealed to, um, a Federal Circuit Court, for example, it was an option, if the State had wanted to continue siding this. But, um, because there were some findings that the Federal Judge made in this case, that really showed the- the double standard that the State was employing, and the way that an accomodation would have been so easy. The State, I think, rightly decided that this was not a case worth fighting, or a case that they had a good chance of winning, if it had gone up to a Federal Circuit. And so, they entered into the settlement, making it a final resolution at this level.
Laura Flint: I'll make a final call for questions. Again, to ask a question, please enter *, then the # key, on your telephone keypad.
Let's go to that next caller.
Man: Good afternoon. My name is Bob Rothman in Eastern Pennsylvania. I'm just wondering, uh, if Stephanie Barclay has any ... can you tell us anything about what the Supreme Court may be considering, that would go against, uh, the uh, the baker in this particular case? What rationale would they have, uh, for allowing the discrimination to take place?
S. Barclay: Well, there was certainly some questions from the Supreme Court, and oral argument about whether or not a cake is expressive or not, and where you draw the line, if something is expressive or not. Uh, if the court were to rule that a cake isn't speech or expression because it, uh, just had symbols on it, or doesn't have writing. I think that would potentially result in a dangerous ruling, for example, where you could have, um, like a- a baker who supports Black Lives Matter, be asked by the White Aryan's Nation Church, to bake a Confederate flag themed cake, uh, for an event by the White Aryan's Nation Church. So, it is possible that the Supreme Court could- could rule that, uh, what Jack Phillips was doing, wasn't expressive. But, I think that would have dangerous implications for other business owners, and their ability to choose what they're going to support or not.
But, even if- even if this court ruled that the cake is not expressive, there's the additional question they have address, of whether or not there's still free exercise protection for Jack, under the Free Exercise Clause of the First Amendment. And that one, I think, is also gonna be difficult for the Supreme Court to get around. The court noted that there was some comments by the Colorado Commissioners [inaudible 00:24:56], seemed pretty hostile towards religion. It was one comment that described Jack's religious beliefs as a despicable piece of rhetoric. And Justice Kennedy, um, seems troubled by that sort of hostility towards religion, and of course, the Free Exercise Clause looks at, uh, whether or not there's a double standard, where you're offering protection to some people, like the bakers in Colorado, who wanted to avoid, um, baking a cake, but you wouldn't offer that same protection to a religious individual.
So it's possible, that in this case, the court, if they're worried about line drawings related to free speech protection, and say, they could still uphold, um, a protection for Jack, in what some court watchers think, is a more narrow way, by making that ruling under the Free Exercise Clause.
Man: Thank you very much.
Laura Flint: Again, to ask a question, please enter *, then the # key, on your telephone keypad.
Do you think that cases like this signaled equilibrium of growing consensus on religious liberty rights in the public square, or do you think opinions are still deeply divided?
S. Barclay: There could've been lots of different opinions about these issues. Uh, Americans have long disagreed about sex, religion and politics, that's nothing new. I don't think that's going to change any time in the near future. But, I do think that there is a- a strong belief that is shared widely, by many people across political spectrums, and different ideologies, and that is that, often, even if we do disagree with each other about sex, religion and politics, we still agree that others should have the right to have those different beliefs. That we understand that that's part of living in a really pluralistic, diverse society, and to live alongside our neighbors with different view points, we have to be willing to protect the rights of those with whom we disagree.
The alternative is to give the government the power to choose one right view, one orthodox view on a lot of these really hot topics, and then punish those who disagree. That's really what's at stake in a lot of these cases, and I think that's why many Americans, even- even those who support same-sex marriage, even advocate gay rights defenders, like Professor Doug Laycock, who absolutely supports the rights of LGBT individuals, are strongly, also supporting the rights of people like Jack Phillips and Masterpeice Cakeshop, because they're saying, "We can have a society where we protect LGBT rights, and where we protect the right of others who have good faith disagreements about sexuality, and marriage, and some of those other issues. And we can find a way to protect both, and to protect dignity of people on both sides."
Laura Flint: Not seeing any questions. Would you like to make some closing remarks?
S. Barclay: I think Gail's case is a good reminder that, often times, maybe on the surface, LGBT rights and religious liberty may look like they're locked in a zero sum game, and that one can only be protected at the expense of the other. But I think that when individuals or groups are willing to have even just an ounce of good faith, and a desire to try and find reasonable solutions, and they dig down, and they do the work to do so, those solutions are often readily available, and they're so needed in our society right now. And that's what the Federal Judge in Gail's case was- was really saying, is that the State had to do that work. The State had to try and explore, and find those sorts of solutions. And the State's refusal to do so, is the reason that the State violated our Civil Rights Act. But I've often mistook, uh, cases like Gail's, and other cases, kind of up the pipeline, remind us of the benefits of trying to find those solutions, not just in courts of law, but in our own communities, in our homes, and to- to try and find ways to protect dignity of both parties, and have a country where, even if we disagree deeply, we can respect each other and, um, still live and let live. Live alongside each other, break bread together as neighbors and citizens, who protect each other's rights.
Laura Flint: On behalf of the Federalist Society, I want to thank our expert for the benefit of her valuable time and expertise today. We welcome listener feedback by email, at email@example.com. Thank you all for joining us. We are adjourned.
Speaker 1: Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast, and other Federalist Society multimedia, please visit the Federalist Society's website, at fed-soc.org/multimedia.