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: Michael Masinter
Louis XIV supposedly once remarked, “L'etat, c'est moi.” But in the United States, public officeholders like Kim Davis are not the state. Although the Free Exercise clause of the First Amendment protects the right of public officials to believe same sex marriages are sinful, the Establishment Clause forbids their offices from having any religion. Yet under the banner of religious accommodation, Ms. Davis seeks to impose her religious objection to same sex marriage on the office she holds. Although some claims for religious accommodations can pose difficult questions, this one does not. Ms. Davis is free to believe as she does, but cannot make those beliefs the religion of the office of the county clerk.
The people of Kentucky, acting through their legislature, have assigned the issuance of marriage licenses to the office of the county clerk. Kentucky Rev. Stat. Ann. 402.100 directs each county clerk to issue marriage licenses to eligible applicants using a form provided by the state, signed by the county clerk or deputy county clerk issuing the license; so issued, the license authorizes the performance of a marriage.
Ms. Davis objects to the issuance of marriage licenses to same sex couples. To avoid issuing those licenses, she insists that some other instrumentality of Kentucky government issue all marriage licenses in Rowan County, or that all applicants be required to travel to a different county to obtain licenses. Ordered by a federal judge to issue licenses and temporarily jailed for refusing to do so, she insisted after her release that: 1) the name of her issuing office as Rowan County Clerk appear nowhere on marriage licenses, and 2) her deputy clerk omit the title of his office from the licenses he issues, signing instead only as a notary public. To effectuate her post release wishes, she confiscated the standard Kentucky forms he had been using while she was jailed for contempt and substituted altered forms.
Kentucky already accommodates Ms. Davis’ objection to personally signing marriage licenses by empowering deputy clerks to sign; Judge Bunning recognized as much by ordering deputy clerks to issue licenses when Ms. Davis refused. The still ongoing litigation centers only around her attempt to disassociate a governmental office from the issuance of marriage licenses—she insists that the licenses bear no connection to the office she holds.
No plausible reading of religious freedom empowers Ms. Davis to override Kentucky law by prohibiting her deputy clerk from signing and issuing marriage licenses based on her religious objections to same sex marriage. Nor does any plausible reading of religious freedom empower Ms. Davis to compel license applicants to travel to another county to obtain marriage licenses. The Commonwealth of Kentucky, acting through the office of the county clerk, issues marriage licenses. To accept her claim that Kentucky must restructure that system of government because of her religious beliefs is to accept “L'etat, c'est moi.” But United States law has always been to the contrary. The religion clauses distinguish individual free exercise and governmental establishment. Over a century ago, the Supreme Court held in Ex parte Young that an officeholder and her office are constitutionally distinct. Ms. Davis seeks to obliterate that very distinction, and with it the principle that we are a government of laws, not of men or women.
To be sure the 1964 Civil Rights Act authorizes some state employees, but not elected officials like Ms. Davis, to seek reasonable accommodations for religious observances and practices, but those accommodations focus on the personal conduct of individuals, must impose no more than a minimal cost on the state, and must not unduly burden other state employees or those whom they serve. Even were Ms. Davis protected by the Civil Rights Act, she could seek no more than the accommodation already built into Kentucky law—she doesn’t have to sign licenses, so individuals who seek to exercise their constitutional right to marry can do so without her personal participation. The Civil Rights Act does not authorize governmental offices to seek reasonable accommodations for the simplest of reasons—the establishment clause forbids a governmental office, including the office of the clerk, from having religious beliefs.
Ms. Davis attacks the foundation of representative self-government by attempting to impose her private beliefs on the discharge of her office’s responsibilities contrary to the sovereign decision of the people and Commonwealth of Kentucky. The people and Commonwealth have decided that marriage licenses should be uniform and available through the office of a clerk in every county in the state. Ms. Davis would undo that decision based on her private faith, insisting in the name of religious freedom that Kentucky governmental authority must stop at the Rowan County line. She insists as a matter of private faith that she must forbid her employees from carrying out their legal duties, exposing marriages licensed by her office to challenge, perhaps decades later, because licenses issued in Rowan County were issued on forms and in a manner unauthorized by Kentucky law.
Ms. Davis has made a radical argument, one that would make religious freedom a universal solvent for representative self-government. If Ms. Davis can forbid the issuance of marriage licenses in Rowan County because of her objection to same sex marriage, another county clerk would be equally free to do so based on religious objections to interfaith or even interracial marriages. Other state officials, relying on other personal religious beliefs, could forbid the issuance of legislatively authorized concealed carry permits for handguns, or could forbid the issuance of legislatively authorized licenses to serve alcohol, or to operate any restaurant that serves pork. That has never been the law, and it should never become the law. What Ms. Davis seeks is both antithetical to self-government and contrary to the Establishment Clause. She should permit her deputy clerks to carry out their duties in accordance with Kentucky law and the United States Constitution; if she cannot do that, she should resign her office.
Michael Masinter is a professor of Law at Nova Southeastern University's Shepard Broad College of Law, where he has taught since 1978.
This piece was originally authored on September 30, 2015 for the Religious Freedom Project at Georgetown's Berkley Center for Religion, Peace, and World Affairs.