By / Sep 9

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.

By / Sep 4

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.