Expanding Public Employee Religious Accommodation and Its Threat to Administrative Legitimacy

197 Pages·2019·1.88 MB·English

by  James N. Szymalak

EXPANDING
JAMES N. SZYMALAK
PUBLIC EMPLOYEE
RELIGIOUS
ACCOMMODATION
AND ITS THREAT TO
ADMINISTRATIVE
LEGITIMACY
Palgrave Studies in Religion, Politics, and Policy
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Mark J. Rozell
Schar School of Policy and Government
George Mason University
Arlington, VA, USA
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James N. Szymalak
Expanding Public
Employee Religious
Accommodation
and Its Threat to
Administrative
Legitimacy
James N. Szymalak
University of Wisconsin–La Crosse
La Crosse, WI, USA
Palgrave Studies in Religion, Politics, and Policy
ISBN 978-3-319-97830-7 ISBN 978-3-319-97831-4 (eBook)
https://doi.org/10.1007/978-3-319-97831-4
Library of Congress Control Number: 2018951573
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A
cknowledgements
The analysis presented in this book is the outgrowth of my prior career
as a federal government employment law attorney, first, as a U.S. Army
judge advocate charged with advising and litigating personnel manage-
ment matters, and then, as a civilian senior personnel policy legal advisor,
where I advised the Army Secretariat on equal employment opportu-
nity and civil rights policy matters. From that role, I was assigned to the
Department of Defense’s National Security Personnel System develop-
ment team. This system would cover nearly 800,000 federal employees,
and be the largest civil system overhaul of the prior three decades. When
those authorities were rescinded, I became an advisor to The Judge
Advocate General of the Army on civilian attorney management matters.
Over this 20-year period, I gained an appreciation not only of the
micro-level concerns of employees and management, but also of the
macro-level institutional concerns. This broader awareness, of what
would become my interest in administrative legitimacy, led me to my
doctoral studies. Seeing the rise of the conservative religious movement
inspired my research into the intersection of religious accommodation
and administrative legitimacy, and this book is the culmination of this
long, winding path.
As with any in-depth project, it is never truly an individual endeavor
and countless individuals provide pivotal assistance along the way. This
project would not exist but for the opportunities and support provided
by my primary supervisor for fifteen of my nearly 20-year legal career,
Diane Nugent. Her continued faith in my abilities—first in hiring me,
v
vi ACkNOWLEDGEMENTS
and then in assigning me to three successive newly-created positions—
provided the knowledge and experience that built this book. I must
also recognize the professional and personal support of my Labor &
Employment Law Division colleagues throughout those years.
There would be no book without a successful dissertation, and for
that I have to thank those that supported me at the George Mason
University School of Public Policy (now the Schar School—one knows
that they have overstayed their program when they witness two succes-
sive name changes before finishing). My committee was willing to sup-
port an idea that had little salience at the time it was proposed nearly 10
years ago. Professors Jim Pfiffner, Mark Rozell, and John Marvel pro-
vided invaluable insight and remarkable patience for a project that com-
peted with my government service. Beth Eck Olchowski and Shannon
Williams ensured that I never drifted too far off course, and for that I am
very appreciative.
I cannot truly express the depth of my gratitude for the support of
those closest to me. My parents and grandmother provided me with
more than I could ever ask for, and I could never repay their love and
support. Regarding this project, I must also acknowledge the utter lack
of support and obstruction from my two best friends. First was Harvey,
who never let me work peaceably, and who passed away far too soon.
And then Utley, who is making his presence known while I type this.
Though they literally added years to this project, I would not trade
their companionship for anything. Last, I must recognize Linda—my
human best friend, my support, my wife. Thank you for your love and
encouragement.
Of course, there would really be no book but for the publisher. I am
indebted to Mark Rozell for getting this off the ground and for believing
in my work. Also, many thanks to Michelle Chen, John Stegner, and the
rest of the staff at Palgrave Macmillan for their guidance and patience
throughout the process.
c
ontents
1 Introduction 1
2 The Obligation to Accommodate 21
3 What Even Constitutes Religion? 41
4 Expanding Religious Accommodation 59
5 Applying the Heightened Standard 81
6 Challenges of an Expanded Obligation 117
7 Threatening Legitimacy 151
8 Accommodation as a Sword 169
9 Conclusion 181
Index 187
vii
CHAPTER 1
Introduction
In physics, every action has its equal and opposite reaction. In politics,
every action has its predictable overreaction.1
There is an almost endless parade of horribles that could accompany the
implementation of HB 1523 [“Protecting Freedom of Conscience from
Government Discrimination Act”]2
—U.S. District Court Judge Carlton W. Reeves in Barber v. Bryant
These two observations made by Judge Reeves in his decision to enjoin
implementation of Mississippi’s freedom of conscience bill accurately
reflect what this book seeks to illuminate and avert. In the wake of the
Supreme Court’s Obergefell v. Hodges3 decision granting marriage equal-
ity to same-sex unions, a renewed push for exemptions from mandates
conflicting with sincerely held religious beliefs is underway. Religious
conservative interest groups are actively lobbying legislators for statutory
protections to freely exercise their beliefs. Similar to conscience clauses
enacted to exempt individuals from facilitating abortions, legislators
1 Barber v. Bryant, 193 F. Supp. 3d 677, 691 (S.D. Miss. 2016); rev’d, 860 F.3d 345
(5th Cir. 2017).
2 Id. at 711, note 32.
3 135 S. Ct. 2584 (2015).
© The Author(s) 2019 1
J. N. Szymalak, Expanding Public Employee Religious
Accommodation and Its Threat to Administrative Legitimacy,
Palgrave Studies in Religion, Politics, and Policy,
https://doi.org/10.1007/978-3-319-97831-4_1
2 J. n. sZYmAlAk
across the country, both federal and state, are introducing bills to protect
an individual’s beliefs as to what constitutes marriage and sexuality. As
Judge Reeves notes, however, such political reactions are often excessive,
if not unnecessary, and they can inflict significant third-party harms.
This book focuses on one particular “horrible” that will likely result
from a continued push for religious exemptions—the impairment of
administrative legitimacy. This threat is explained in far greater detail
in Chapter 7; however, a brief summary now of how this book con-
ceptualizes administrative legitimacy will provide beneficial context.
For this discussion, legitimacy is the manifestation of the public’s col-
lective trust and confidence that a public organization is acting in the
public’s interest—as conceptualized by the public itself.4 This perceived
legitimacy promotes civic cooperation and compliance with the agency’s
activities and directives.5 It reduces cynicism and increases public sup-
port for agency policies.6 Agencies foster legitimacy in several ways, but
4 Tom R. Tyler, Psychological Perspectives on Legitimacy and Legitimation, 57 AnnuAl
Review of PsYchologY 375 (2006).
This book addresses agency-level legitimacy and the public’s trust and confidence of
the agency’s action, and it does not engage the broader legitimacy literature addressing
the role of discretion and the relation of administrators to the political leadership. For a
greater discussion of this aspect of administrative legitimacy and the role of administrator
discretion, see Michael W. Spicer & Larry D. Terry, Legitimacy, History, and Logic: Public
Administration and the Constitution, 53 Public AdministrAtion Review 239 (1993) (not-
ing that “a set of constitutional rules, by checking discretionary power, limits the costs
which government can impose on individuals, either as a result of exploitative policies or
as a result of policy errors inevitable in an environment of uncertainty,” but that some dis-
cretion could “be justified on the constitutional grounds that it some times enables pub-
lic administrators to modify, delay, or resist the directives of political leaders in a lawful
manner.” Id. at 243–44). This debate regarding the limits of discretion emanates from
the original mid-twentieth century Friedrich/Finer debate. See generally Herman Finer,
Administrative Responsibility in Democratic Government, 1 Public AdministrAtion Review
335 (1941); Carl J. Friedrich, Public Policy and the Nature of Administrative Responsibility,
1 Public PolicY 1 (1940).
5 Rick Trinkner, Jonathan Jackson & Tom R. Tyler, Bounded Authority: Expanding
“Appropriate” Police Behavior Beyond Procedural Justice, 42 LAw And HumAn BehAvior
280, 291 (2018).
6 Rick Trinkner & Eleen S. Cohn, Putting the “Social” Back in Legal Socialization:
Procedural Justice, Legitimacy, and Cynicism in Legal and Nonlegal Authorities, 38 LAw
And HumAn BehAvior 602, 603 (2014).