Need We Jail Each Other Over Marriage Licenses?

The situation involving Kentucky County Clerk Kim Davis presents the most complex case concerning religious liberty since the Supreme Court legalized same-sex marriage in all fifty states with its June Obergefell ruling.

The complexity of this case arises from the fact that Mrs. Davis is a government employee charged with the responsibility of upholding the rule of law. Were this a case involving a private citizen, the facts and argument would look drastically different.

For the facts of the case, we would point you to this ERLC explainer.

There are four issues at stake worth exploring.

The events in Kentucky are the result of judicial overstep on the part of the Supreme Court. Secondly, government inaction by both the Kentucky legislative and executive branches has failed to resolve this conflict where it feasibly could. Third, needless escalation by Judge Bunning on arresting Mrs. Davis for an unspecified amount of time has placed an otherwise law-abiding citizen in prison. Fourth, in this dispute, there are differences concerning religious liberty when it involves government employees and private citizens.

First, by imposing their redefinition of marriage on the rest of the United States instead of allowing states to decide their own marriage policy, the Supreme Court obstructed states from taking an incremental approach that would patiently and legislatively resolve the balance between same-sex marriage and religious liberty. Had states had the opportunity to craft their own marriage policy, legislatures could have made the necessary accommodations needed to protect both religious liberty and the rule of law for all its citizens—whether government employees or private citizens. Sadly, that is not the case, and states are now left reeling in the conflict thrown at them by the Supreme Court.

Second, Kentucky Governor Steve Beshear, whose veto of a 2013 Religious Freedom Restoration Act was overturned by the Kentucky legislature, has stood idly by and offered no relief, despite pleas from thousands of Kentuckians who’ve asked him to provide leadership and seek legislative compromise in this conflict. This inaction on the part of the governor represents gross indifference to his duties as governor. Governor Beshear could, and indeed, should, immediately convene a specially called legislative session to resolve this issue that provides accommodations for objecting clerks with the assurance that all legal licenses are lawfully issued.

Third, the judicial ruling against Mrs. Davis needlessly escalated the events in Kentucky by meting out an unnecessarily harsh penalty—incarceration—with failure to consider similar past measures undertaken by those in support of same-sex marriage. As many others have noted, those who are now hailing the rule of law as a way of cudgeling Mrs. Davis are the same voices who once undermined it in the name of advancing same-sex marriage. When Attorney General Jack Conway (now the Democratic candidate for governor) refused to defend Kentucky’s marriage law, no negative recourse was handed out even though Conway got to play pick-and-choose with the laws he believed were worth defending. Furthermore, when a same-sex couple in Kentucky exercised civil disobedience at being turned down for a same-sex marriage license in 2013, they were arrested, fined one cent, and quickly set free. With the length of her incarceration unknown, is Mrs. Davis receiving equal treatment?

Fourth, we must recognize the crucial difference between the religious liberty claims of private citizens and government officials. Let us be clear: Government employees are entitled to religious liberty, but religious liberty is never an absolute claim, especially when it comes to discharging duties that the office in question requires. While government employees don’t lose their constitutional protection simply because they work for the government, an individual whose office requires them to uphold or execute the law is a separate matter than the private citizen whose conscience is infringed upon as a result of the law. It means the balancing test is different when it comes to government officials because of their roles as agents of the state. Government officials have a responsibility to carry out the law. When an official can no longer execute the laws in question due to an assault on conscience, and after all accommodating measures have been exhausted, he or she could work for change as a private citizen, engaging the democratic process in hopes of changing the questionable law.

We must be very clear about the distinctions here between persons acting as an agent of the state and persons being coerced by the state in their private lives. If the definition becomes so murky that we cannot differentiate between the freedom to exercise one’s religion and the responsibility of agents of the state to carry out the law, religious liberty itself will be imperiled.

The dramatic events and drastic steps in Kentucky are not necessary given the multiple ways that states can protect individual conscience while still upholding the rule of law. North Carolina is an excellent model for balancing rule of law and individual conscience without harming either.

The situation in Kentucky reminds all of us that America is extremely divided on issues that show no signs of weakening. This zero-sum culture war cannot continue if the social fabric of America is to have any chance of unifying around a robust pluralism. What’s next is unknown, but Christians must exercise due diligence when thinking through the complex webs of navigating religious liberty with the Romans 13 obligation to see law and order followed—even laws we consider contrary to the common good and human flourishing. If Mrs. Davis’ plight reminds us of anything, it is that Christians—like all Americans—must utilize every measure available to them in the democratic process to enact laws that are just, moral, and peaceable.

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