In Kentucky, A Win-Win for the Constitution

On September 1, 2015, the Supreme Court refused to grant a stay to Kim Davis, a county clerk based in Kentucky who was refusing to issue marriage licenses in the wake of the Obergefell v. Hodges decision. The act of issuing marriage licenses to same-sex couples, she claims, would be against her religious beliefs. This week, Cornerstone asks: Should individuals in government jobs be required to act against their consciences by participating in same-sex weddings?

By: Charles C. Haynes

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Kim Davis, the now famous county clerk in Rowan County, Kentucky, is out of jail and back to work this week. But she is not interfering with the clerks in her office who are processing marriage licenses for same-sex couples.

Davis, who objects to gay marriage on religious grounds, is apparently satisfied that removing her name and position from the licenses sufficiently guards her freedom of conscience.

What better way to commemorate Constitution Week than with a good old-fashioned American compromise?

After all, the charter that emerged from the Constitutional Convention on September 17, 1787, was the result of messy, contentious deliberations—and many compromises across competing visions and ideas. 

Not everyone was happy with the sausage making in eighteenth century Philadelphia; some delegates left before the signing ceremony and three others refused to sign.

And, needless to say, not everyone is happy with the outcome of the Kim Davis affair today.

On one side, there are those who want Davis to continue the fight to stop, by any means necessary, what they believe is an illegitimate Supreme Court decision on same-sex marriage. On the other side, many argue that public officials should simply do their job or resign—no ifs, ands, or buts.

As for me, the Davis conundrum brings to mind a line from Benjamin Franklin’s famous speech, delivered on behalf of an ailing Franklin by James Wilson, just before the signing of the Constitution on that fateful day in September 1787:

“Thus I consent, Sir, to this Constitution because I expect no better, and because I am not sure, that it is not the best.”

Much to the frequent discomfort of partisans on all sides, the art of democracy is the art of compromise. When two constitutional rights collide—as they did this month in the Rowan County clerk’s office—the best, if imperfect, solution is to find a way to protect and defend both.

It’s true, as some commentators have pointed out, that Kim Davis as a public official may have no right to an accommodation under current First Amendment law—or even under the Kentucky Religious Freedom Restoration Act. Only lengthy litigation could fully answer that question.

But allowing an accommodation—whether required by law or not—not only ends the crisis, but also serves to uphold our nation’s historic commitment to liberty of conscience.

It’s also true that altering the language on marriage licenses is viewed by some as “giving in” to religious opponents of gay marriage in a way that may encourage copycat protests in other parts of the country.

The small change in language, however, does nothing to impede the access of same-sex couples to marriage licenses. If accommodating religious objectors to gay marriage does not infringe on the constitutional rights of gay couples because others can readily serve the couples, then we lose little and gain much by protecting liberty of conscience.

It’s not entirely clear to me why this compromise wasn’t brokered months ago, sparing the country the media circus and political grandstanding of the past week.

Nevertheless, however unnecessary and unfortunate the rhetoric, the uproar in Rowan County should serve to remind Americans of how divided we are—and how much work needs to be done to bridge our deepest differences.

The Kentucky compromise isn’t perfect, just as the compromise that emerged from Philadelphia wasn’t perfect. It will need to be tested and amended as competing visions and principles continue to clash across the country.

But when all is said and done, I am convinced that the outcome in Rowan County will be remembered as a win-win for the Constitution.

Charles C. Haynes is the vice president of the Newseum Institute and executive director of the Religious Freedom Center.

This article was originally printed in Inside the First Amendment on September 16, 2015. Click here to download a text version of this column. It was then posted on September 28, 2015 for the Religious Freedom Project at Georgetown's Berkley Center for Religion, Peace, and World Affairs.

Permanent Link: https://www.religiousfreedominstitute.org/cornerstone/2016/7/14/in-kentucky-a-win-win-for-the-constitution