John Rustin | March 15, 2018 | SHARE: 
Stephanie Barclay, Counsel at The Becket Fund for Religious Liberty, a non-profit, public-interest legal and educational institute with a mission to protect the free expression of all faiths discusses a recent legal victory for religious liberty that happened in North Carolina.
Thanks for joining us this week for Family Policy Matters. Today we are going to discuss a victory for religious liberty that recently took place right here in North Carolina. You may recall several years ago, before the U.S. Supreme Court issued its landmark Obergefell v. Hodges decision that legalized same-sex marriage across the nation, that the North Carolina General Assembly passed a bill allowing magistrates to recuse themselves from participating in the solemnization of marriages in North Carolina, based upon a “sincerely held religious objection.”
Well, in February, a magistrate from Union County, Gayle Myrick, reached a settlement with the State of North Carolina in a discrimination lawsuit she had filed after being forced to resign her job and subsequently losing her retirement benefits when she adjusted her work schedule so she would not have to participate in marriages in Union County.
Our guest today is Stephanie Barclay. Stephanie is counsel at The Becket Fund for Religious Liberty, which is a non-profit, public-interest legal and educational institute with a mission to protect the free expression of all faiths.
Stephanie, welcome to Family Policy Matters. It’s great to have you on the show.
STEPHANIE BARCLAY: Thank you so much for having me.
JOHN RUSTIN: Stephanie, as we begin our conversation today, give us some background on this case. What events transpired that caused Ms. Myrick to resign her job as a magistrate in Union County and then file this subsequent legal challenge against the State?
STEPHANIE BARCLAY: Gayle Myrick was highly qualified and a respected magistrate in North Carolina for many years. As a magistrate, […] a very small portion of her work included performing civil marriage ceremonies. Same-sex marriage became legal; Gayle didn’t want to stop anyone from getting married, but she knew 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 religious conviction. Gayle’s immediate supervisor had a great solution: They could simply shift Gayle’s schedule by a couple of hours so she wasn’t even working when marriage ceremonies were performed. Gayle’s office would let magistrates shift their schedule for lots of reasons, and that solution would have allowed everyone to get married without delay or embarrassment, and Gayle could keep her job. But the State government rejected the solution and forced Gayle to choose: her faith or her job. She was forced to resign, losing her retirement and the job she left.
JOHN RUSTIN: Stephanie, one of the most interesting things about this case is that Ms. Myrick had made arrangements, as you said, with her boss and co-workers to avoid any sort of conflict. But then, the state government stepped in and said this was an unacceptable solution and essentially forced her to choose between her job and her deeply held religious convictions. In your opinion, why was the State so intent on pushing this agenda when a reasonable accommodation had already been made?
STEPHANIE BARCLAY: That is a great question and that is exactly what the federal judge wanted to know when we took this case to court. Our Civil Rights laws—employers really, are required to try and find reasonable solutions for religious beliefs, like in this context. That’s why, recently, the federal judge ruled that the State government broke the law when it refused to let Gayle change her schedule and it refused to even consider a reasonable solution. The Government later acknowledged it treated Gayle unfairly, and it entered into a substantial settlement to make her whole, giving back the back pay and the retirement benefits that were unjustly taken from her. So, this case is important not just for Gayle, but it also sends a strong signal to state governments that if they’re going to be unreasonable and unwilling to try to find reasonable solutions that protect employees of faith, then there are consequences that they’ll face. And these reasonable solutions are not only good to protect the dignity of everyone in society, they’re required by law.
JOHN RUSTIN: That is such an important statement because we’ve seen, in a lot of these instances, as it is with Ms. Myrick, that she just wanted to appreciate and recognize and honor her deeply held religious beliefs, but to do so in a way that was non-confrontational. Again, a reasonable accommodation, to suit the circumstances, but to some that was—and in this case to the State—not acceptable or appropriate. And therefore, the courts had to get involved and the State ended up losing in that situation.
STEPHANIE BARCLAY: It was a good example where the State didn’t have to lose. There didn’t have to be a winner or a loser. They could have found a way, if the State had just been reasonable where it could still provide its services to any couple without embarrassment or delay, and Ms. Myrick could still have her faith. And then it could be a win-win solution for both sides. Those sorts of solutions are available if we’re willing to look for them. And this is a good case that reminds us that not only should we look for them, but our civilized laws require us, in many instances, to do just that.
JOHN RUSTIN: That’s just very positive. Now Stephanie based on your legal expertise, what’s the difference between the future significance of this settlement compared to a possible decision by a court? It certainly creates some sort of precedent, but would you consider it to be kind of a legally binding precedent or it just sort of sets the stage if similar challenges are brought in the future?
STEPHANIE BARCLAY: There was a decision by the federal judge before settlement, so we do still have federal precedent and EEOC precedent as well, letting state governments and employers everywhere know that if you’re not willing to provide any sort of reasonable accommodations when they’re available, even for magistrates and state employees, then that’s a violation of our Civil Rights laws. So, there is still precedent that is important in that way. The settlement, I think, is significant because it signals even more strongly to employers and state governments that there are significant financial risks if they’re going to be unreasonable and if they’re not willing to try and find ways to protect the dignity of all sorts of individuals [in the] workforce. I think that will be a positive thing that makes employers sit up and take notice.
JOHN RUSTIN: This situation is so interesting because, so often, the religious liberty cases we hear about are brought by same-sex couples claiming that they have been discriminated against. But in this case, Ms. Myrick, a Christian, was discriminated against by the government. So how does this particular case fit into the overall landscape of religious liberty cases that we’re seeing across the country?
STEPHANIE BARCLAY: That’s a great question. And you’re right, the federal judge did explicitly find that Ms. Myrick had been discriminated against because the state was willing to provide […] accommodations for all kinds of other reasons, and would have provided it to Gayle if she’d asked for just about any reason, and singled her out for poor treatment simply because of her religious beliefs, and that is discrimination. What I would say is that, really, a lot of religious liberty cases that are percolating in the context— some of these religious liberty issues are often dealing with the question of, “Are we going to give religious people the protection we already provide to other groups, or not?” In the Masterpiece Cakeshop case for example, Colorado—the Commission there—protected the rights of other bakers, including gay bakers, to turn down job requests for cakes that were condemning homosexuality. And we regularly let business turn down orders for other sorts of things. There’s the Seattle coffee shop that declined to serve some pro-life protesters. Chipotle refused to cater to the Boy Scouts for their then policy on gay scoutmasters. So businesses make these decisions all the time as far as what messages they’re going to support. And one of the important questions that Masterpiece [brings] is: Are we going to give that same protection to people of faith, or are they going to be singled out for disfavored treatment? What Gayle’s case show us, I think, is important for lots of these other cases is that there’s ways to find the ability to protect the dignity of everyone, the rights of everyone in our diverse society. Faith and sexual orientation are deeply important to the identity of many people but they don’t have to be at odds with each other. In Gayle’s case, there is a reasonable solution that protects the dignity of both. And the federal judge there said that LGBT individuals could get married without delay or embarrassment and employers can’t target employees because of their faith. I think in many of these cases, there are ways to find reasonable solutions if one side isn’t trying to go for a winner-takes-all approach where the government has the power to pick one “right” view and then punish those who disagree.
JOHN RUSTIN: Absolutely. Stephanie, what is the current legal status in North Carolina for magistrates who find themselves with sincerely held religious objection to performing certain marriages in our current cultural climate?
STEPHANIE BARCLAY: North Carolina passed the law that makes it so that if a magistrate has an objection to performing any sort of marriage based on their religious beliefs, […] counties have to make sure that someone is available to provide marriage services so that any couple who’s entitled to be married under the law will be able to receive those services promptly and on the same basis as everyone else. That to me sounds like a reasonable solution and a way to make sure that all magistrates with conscience objections are protected in North Carolina, and all couples are still able to receive services they’re entitled to. There doesn’t have to be a conflict.
JOHN RUSTIN: Stephanie, just kind of a technical question, this case of the resignation of Ms. Myrick as a Union County magistrate took place before the Supreme Court’s decision in Obergefell and before the enactment of Senate Bill 2, the magistrates’ bill in North Carolina. So, did the existence of Senate Bill 2 and the magistrates protection have significant implications in this particular case, or was it based on the simple fact that Ms. Myrick had religious protections in the Constitution and that the government should not attempt to impose its will upon her in a way that would force her to violate those religious beliefs?
STEPHANIE BARCLAY: It’s a good question and you’re right on the timing. The law that North Carolina passed was not directly relevant to Gayle’s case. I’ll put it this way, she could have still won her case without the passage of that law just because her law was argued under Title VII protection of the Civil Rights laws, which say employers have to accommodate employees of certain different protected classes and find reasonable ways to let them still participate in the workforce. And this protects lots of different types of groups: This makes it possible for Muslims to take prayer breaks during the day, or nursing moms to have scheduling shift for family needs, or people with disabilities to receive special equipment so that they can do a good job. And generally in society, we think of that as a good thing. We don’t just say to someone with disabilities, “If you can’t do your job just like everybody else, you’ll lose your job.” That’s unthinkable. We wouldn’t say that to them. But Title VII in this case says, we cannot say that to someone for their religious beliefs either. I know that it’s tempting for people to think that but the court made very clear that the State was wrong to say, “If you can’t do this, two percent or five percent, whatever it is of your job tasks, you can’t work here,” which is essentially what the State did say. And because—the facts in Gayle’s case showed—that there was an easy workaround, an easy reasonable way that allows the government to accomplish its goals while still protecting Gayle, they violated the Civil Rights laws by not considering that.
JOHN RUSTIN: I asked that question because obviously we’re very supportive. The North Carolina Family Policy Council worked hard in support of Senate Bill 2, the Magistrate and Registers of Deeds Protection Bill. But I think it is significant in this particular case, that this result came about kind of notwithstanding Senate Bill 2. And so that speaks to the fact that courts, that judges, and that many of us still hold to the fact that there are fundamental religious liberty rights that are protected by the Constitution that are intended to continue to exist in our country, despite the many challenges that we see around the country, and that people who believe that their religious liberties have been infringed upon should seek to protect those rights and know that our Constitution is designed to provide that protection.
STEPHANIE BARCLAY: I agree that there are certainly constitutional rights for religious liberty. This case wasn’t even decided under the Constitution, it was decided under Civil Rights laws. But both offer protection for people of faith. And I think this case is an important reminder that they’re not the only group in society that doesn’t get those protections. We offer them to lots of groups and we should, but we shouldn’t single out people of faith to be the “eccentric uncle” of the human rights family. Religious liberty matters and continues to matter in the country and that’s a good thing for everyone.
JOHN RUSTIN: No doubt. Stephanie, where can our listeners go to learn more about this case and the great work of the Becket Fund?
STEPHANIE BARCLAY: They can go to www.becketlaw.org and this particular case, Gayle Myrick’s case, is one that they can find at our website and learn more about her story. It’s been a great victory, really a momentous victory for religious liberty.
JOHN RUSTIN: With that, Stephanie Barclay, I want to thank you so much for being with us on Family Policy Matters and for your dedication to ensuring the defense of religious liberty rights for people of all faiths across our country.
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