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: Matthew J. Franck
On June 26 of this year, five justices of the Supreme Court, led by Justice Anthony Kennedy, inflicted a grievous wound on the Constitution by falsely claiming that it requires states to grant marriage licenses to same-sex couples. In an opinion that would be hilarious (for its incompetent reasoning) if its effects were not so tragic, Kennedy and his fellow justices in the majority chose sides with the aggressors in a culture war that has made political prizes out of fundamental pre-political institutions such as marriage and family, and even of the meaning of human dignity—which now comes attached in law to the self-constituting choices of adults, but not to the very lives of the unborn.
To someone who had just awakened from a Rip Van Winkle slumber and knew nothing of recent developments in the American polity, it would have come as some surprise that Justice Kennedy paused in his opinion in Obergefell v. Hodges, to offer a seemingly gratuitous assurance that religious freedom and conscience would suffer no ill effects from this rewriting of constitutional law and reordering of society. Perhaps he was stung into responding to the four dissenters in the case, each of whom rang an alarm about the jeopardy in which the decision had now placed the freedom to dissent from it, on religious or any other grounds. But why, our Van Winkle might ask, should any of the justices mention religion, or the freedom of religion, in a case having nothing in itself to do with such concerns? Were not the dissenters, too, gratuitously raising an irrelevant issue?
Kim Davis, the elected clerk of Rowan County, Kentucky, arrived on the national scene about two months later to demonstrate just how relevant religious freedom is in the new legal environment conjured into being by the Obergefell majority. Objecting, as a conscientious Christian, to the legal requirement that state marriage licenses be issued by her office under her name and over her signature, Davis ordered her staff to cease issuing licenses to any couples, of the same or opposite sexes. Same-sex couples seeking marriage licenses lodged their complaint with federal judge David Bunning in US District Court. After much to-ing and fro-ing—including a Labor Day weekend in lockup by Ms. Davis and an unsuccessful appeal on her part to the Sixth Circuit—same-sex marriage licenses are now being issued in Rowan County by a deputy clerk, without bearing Davis’s name.
In law, Kim Davis’s claim seems very weak. Federal employment anti-discrimination law calls for reasonable accommodations for religious conscience in the workplace—but the law does not cover elected officials like Davis. The federal Religious Freedom Restoration Act (RFRA) requires that “government” not substantially burden the exercise of religion but for compelling reasons and then only in the least restrictive way—but it is far from clear that RFRA’s strictures apply to the orders of a federal judge, the only agent of “government” imposing any obligations on Ms. Davis.
Kentucky has its own state RFRA, passed in 2013, but vindication of any claim under that law would seem to require litigation in state courts, according to federal appeals court judges of the Sixth Circuit. Roughly half the county clerks of Kentucky have requested that the governor convene the state legislature to consider religious accommodations in which clerks and their deputies could be excused from issuing some licenses so long as those applying for them were served by someone in every clerk’s office, but the governor has declined the request.
Everywhere she turns, in short, Kim Davis has found no refuge in the laws of her country, except in the improvisations contrived or blessed so far by Judge Bunning. In defying the law in the name of justice and conscience and willingly suffering the consequences under an unjust law, was Davis a kindred spirit with Rev. Martin Luther King, Jr., locked up in Birmingham Jail a half century ago? Or was she the new Bull Connor or George Wallace, symbolically slamming the door of her office on the civil rights claims of same-sex couples?
Certainly not the latter, unless we entertain a grotesque comparison of inconvenienced same-sex couples with the brutalized victims of Jim Crow. But Ms. Davis is not quite in company with Rev. King, either. He was a private citizen challenging an unjust legal order. She is a public official with legal duties her office cannot shirk. True, her duties were altered, after her election, by a Supreme Court ruling that is itself an outrageous assault on the rule of law. In some respects Davis’s claim would have more merit if it were couched, not in the idiom of religious freedom and conscience, but in the vocabulary of an officeholder who took an oath to obey the Constitution, not five justices of the Supreme Court. Tragically for her situation however, the justices of the Supreme Court, and below them the judges of the Sixth Circuit and the eastern district of Kentucky, have the right to be wrong about the Constitution and to be obeyed by Ms. Davis when they speak directly to her, whereas she does not have the right to be right and to disobey them.
And we should note that Davis makes no claim that the same-sex couples seeking marriage licenses should be prevented from having them. She wishes only to salve her conscience by avoiding even the appearance of her personal endorsement of any change in the meaning of marriage contrary to the teachings of her faith. This central fact of her case lights a way forward for some accommodation, when the Kentucky legislature does convene in the coming months. That assembly and others should emulate what North Carolina has recently done to balance the religious conscience of local officials and the newly established legal claims of same-sex couples.
But we should not pretend that solving these “wedding day” problems will put the conflict between religious freedom and same-sex marriage behind us. As I have observed before, these problems are just the beginning of the difficulties into which the Supreme Court has plunged us. Conscientious people of many faith traditions, in a country drawing down the cultural capital of Judeo-Christian civilization in the name of secular reshufflings of basic concepts like human dignity, increasingly find themselves outside the structures of authority, looking in. Inside those structures, little space is accorded to a religious freedom to dissent, as the dissenting justices in Obergefell presciently foresaw.
Matthew J. Franck is director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute and a visiting lecturer in Politics at Princeton University.
This piece was originally authored on October 1, 2015 for the Religious Freedom Project at Georgetown's Berkley Center for Religion, Peace, and World Affairs.