Should Kim Davis, the Kentucky county clerk who was jailed for refusing to issue marriage license, have resigned?

Over the past week many people, including many Christians sympathetic to her cause, have said Davis should resigned from her elected position as Rowan County Clerk if her conscience won't allow her to do the job as required. While I understand the reasoning, and am even partially sympathetic to that view, I think it misses the reason Davis acted as she did and how her choice does not necessarily conflict with the rule of law.

For at least fifty years it has not been a requirement that you must do every aspect of your job, despite your beliefs, or automatically resign. As Ryan Anderson wrote in a recent New York Times op-ed:

We have a rich history of accommodating conscientious objectors in a variety of settings, including government employees. Do we really want to say that an otherwise competent employee must quit or go to jail if there is another alternative?

I don’t believe we do want to say that. In fact, I believe one of the quickest ways to government tyranny is to require every religious believer with conscientious objections to immoral laws and government overreach to resign from government positions.

While we don't have an absolute right to religious liberty, we also don't give up every religious liberty when we work for the government. (For more on this, see legal scholar Eugene Volokh's explanation for when your religion can legally excuse you from doing part of your job.) To determine where the line gets drawn, we need some form of negotiation between the believer and the state.

Ideally, the individual states would have been given time to issue a relevant policy. For example, Kentucky could have either accommodated the religious beliefs of same-sex marriage objectors or made it clear that they would need to resign their position if they could not, in good conscience, issue marriage licenses with their name on them. However, when the Supreme Court imposed their immoral standard by fiat, they required the changes to be made immediately and did not give states the time needed to address the issue. As Ryan Anderson adds,

Had same-sex marriage come to Kentucky through the Legislature, lawmakers could have simultaneously created religious liberty protections and reasonable accommodations for civil servants. But the Supreme Court decided this issue itself — and, as predicted by the dissenting justices, primed the nation for conflict.

Because each marriage license issued by the clerk’s office bore her name and title, Ms. Davis concluded that her religious beliefs meant she could not have her office issue licenses to same-sex couples. So she had the office stop issuing them entirely.

Still, the individual states should have made it a priority to address the concerns after the Obergefell ruling in June. Kentucky did not do so. Instead, when the governor was asked to call a special session of the legislature to try to work out a reasonable accommodation, he said it could wait until January.

What were those with religious objections supposed to do until the new year? Was Davis expected to violate her conscience until the other elected officials in Kentucky decided to act? By refusing to quit or violate her conscience, Davis attempted to force the state to address the issue. She even filed a federal complaint against state officials under the Kentucky Religious Freedom Restoration Act, which should have been sufficient to resolve the issue. As Eugene Volokh says,

So if Kim Davis does indeed go through the state courts, and ask for a modest exemption under the state RFRA — simply to allow her to issue marriage licenses (opposite-sex or same-sex) without her name on them — she might indeed prevail. Rightly or wrongly, under the logic of Title VII’s religious accommodation regime and the RFRA religious accommodation regime, she probably should prevail.

The state of Kentucky should have quickly responded by making it clear they were open to considering removing the clerks names if they had an objection (a simple enough change) or they should have told Davis and all other clerks in the state that there would be no accommodation and that they would be impeached for refusing to issue marriage licenses (a move that would have been politically unpopular). The state did neither, and instead the federal government intervened—once again—in a state issue and made the situation messier than it needed to be.

On the bright side, this may be the wake-up call other states need to realize they need to clarify their policies. It may also help Americans better understand how many exemptions and accommodations are already allowed, and that we don’t necessarily have to give up our religious freedom simply because we work for the government or get elected to office. By refusing to take the easy way out and resign, Davis has forced a much needed conversation about religious liberty in America.