Tuesday, September 8, 2015

Is there any room for a public employee to legally decline to do any part of her job? Legal Ethics Forum

 Legal Ethics Forum: The Kentucky county clerk, the judge who opposes the death penalty and the risk of imposing a religious test for public office: Is there any room for religious or other ethical objection to carrying out a portion of a public official’s duties?
by Richard Painter

I supported same sex marriage in amicus briefs filed with the United States Supreme Court. If I were a county clerk I would issue the licenses as required by law and I would not have to endure conflict between such duties and the teachings of my Church, which supports same sex marriage.


But what if I were a judge faced with a death penalty case? Since the 1958 General Convention, U.S. Episcopal bishops have maintained a position against the death penalty.

Religious Organizing Against the Death Penalty, Statement of the 1979 General Conference

Many other religious denominations also oppose capital punishment. Should a judge be required to impose the death penalty even if his fundamental religious belief is that it is wrong – perhaps a grave sin – to order the death of another person even for a horrible crime?

If we go too far in forcing people to undertake official duties regardless of religious beliefs, we will de facto impose a religious test for public office despite Article VI, paragraph 3 of the Constitution:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.***

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