BU shares the Jeff Cumberbatch Barbados Advocate column โ Senior Lecturer in law at the University of the West Indies since 1983, a Columnist with the Barbados Advocate [โฆ]
since 2000 and BU commenter โ see full bio.
Musings: A nation under law [I]
9/6/2015
By Jeff Cumberbatch
Two items of news this week, entirely unconnected and in different jurisdictions,
implicated the complex issue of the primacy of the rule of law as opposed to that of personal belief or political expediency in an avowedly democratic society. The first, by far perhaps the more notorious, concerned the matter of Mrs Kim Davis, a county clerk in Kentucky in the US, who has refused to issue marriage licences to same-sex couples on the ground[s] that she should not be compelled to recognise same sex marriage since this does not comport with her religious beliefs. In fact, Mrs Davis, according to the New York Times, is but one of four or five state officials throughout the US who have taken this stance that natural marriage cannot be defined by Government, although she alone has become the poster child of the group.
While the right to personal religious freedom is guaranteed under the US Constitution, as it is under ours, it is difficult to understand the precise nature of Ms Davis objection. In the first place, it is accepted that this right, as are all the others, is not absolute, but rather qualified, in that it may be limited by law to the extent that it is reasonably justifiable to do so in a democratic society.
One such limitation is that these rights may be restricted by the existence of valid law that forbids the particular exercise of the religious practice. Hence, until it is adjudged to be unconstitutional, the members of the Rastafarian religion cannot successfully claim that the consumption of marijuana is a constitutionally guaranteed exercise of their freedom of conscience to manifest and propagate their religion or belief in worship, teaching, practice and observance.
And while there may be no specific written law that Mrs Davis infringes by refusing to grant the marriage licences, she is clearly failing in her duty to assist her employers, the state and county, to comply with the requirement, because of the relatively recent Supreme Court decision, to issue the licences unless there is some specified justifiable reason not to do so -of which the identical sex of the parties is not one. She thus places them in breach of their constitutional undertaking. Such a flagrant dereliction of duty would, of course, merit immediate dismissal under most employment laws.
Even more puzzling in this context is the reluctance of Mrs Davis to voluntarily resign from her job on religious grounds as commanded by the very tenets of her religion that counsel every believer in 2 Corinthians 6:17 to โcome out from among them and be ye separateยกยญtouch no unclean thing and I will receive youโ.
There are some jobs that require a religious qualification and there is provision in some jurisdictions for an exception to be made to equal opportunity stipulations in this regard. The Trinidad & Tobago Equal Opportunity Act 2000, for example, permits an employer to discriminate on the ground of religion where being of a particular religion is a necessary qualification for employment. It is not immediately clear that a similar rule may apply to a public office such as that held by Mrs Davis.
The phenomenon of Mrs Davis being jailed for contempt for her actions last week would be abhorred by most Barbadians who, against all evidence, refuse to accept that we do not live in a theocracy but in a secular constitutional polity, no matter the prevailing loosely uttered view that we are a Christian societyยกยญ whatever that phrase might mean.
The reality is accepted that there may be more instances than a few of congruence between Biblical fiat and local law. However, this coincidence must not be mistaken for any prescribed legislative agenda to reproduce Christian teachings, as those laws that confound religious prescription and dogma such as the Status of Children Act, those aspects of the Family Law Act that accord legal validity to the union other than marriage and the Medical Termination of Pregnancy Act, for examples, cogently demonstrate.
Indeed, Mrs Davisโ insistence here, although she appeals to admittedly higher authority, is not substantially different from that of those who claim to be able to ignore a legal proscription because of hunger, a sense of entitlement or simply basic disagreement with its provisions. The tax-evader who sincerely believes that the state authority is expropriating too much of his or her earnings to no ostensibly useful end or the pejoratively titled mule that transports contraband for remuneration in order more effectively to provide for her children also appeals to another ideal. It is at least doubtful, however, whether the ordinary man or woman on the Silver Sands ZR would be prepared to excuse such conduct on either stated ground.
It might be churlish to descend to the level of personality, but there are credible reports that Mrs Davis was thrice divorced before her conversion to Christianity about four years ago. Naturally, according to the teachings of her faith, these multiple contraventions of solemnly given vows should be ignored since she has since been washed clean in the blood of the Lamb and I, for one, have no difficulty with this thesis. She remains entitled to embrace her views and to suffer the consequences of her actions.
There have been some risibly spurious legal arguments offered to rebut the validity of the recent judgment of the Supreme Court. One presidential hopeful last week even asserted in all seriousness that the judgment of the Supreme Court on the interpretation of the Constitution in the recent case was not binding in the absence of enabling legislation by the states. I do not care to deal with these opinions here, given their irrelevance to the local circumstance. Indeed, the entire local same-sex marriage debate is wholly immaterial except in the minds of those who, for one reason or another, seek to categorise even the thought of its local likelihood as the abomination of desolation.
This column was not about that, in youth-speak. It simply sought to reiterate that in a society such as ours, one reputedly governed by the rule of law; there is a price to be paid for its disobedience, however justifiable this might appear to be.
Next week, I propose to deal with the second item; the apparently official perception in the Ministry of Labour that the provisions of the existing Protocol, which govern the terms of the Social Partnership, may at times supersede those of enacted legislation.
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