On Tuesday, in front of a large crowd of supporters that included Republican presidential candidates Mike Huckabee and Ted Cruz, Kim Davis was released from federal custody.
As you all undoubtedly know, Kim Davis is the Kentucky county clerk who refused to issue marriage licenses following the U.S. Supreme Court ruling that legalized same-sex marriage. Kentucky law requires marriage licenses be issued under the authority of an elected county clerk like Ms. Davis. A devout Apostolic Christian, however, Kim is opposed to same-sex marriage. She believes that being forced to issue marriage licenses to same-sex couples would violate her religious liberties.
Although she has six deputy clerks working under her, Ms. Davis also refused to let them issue marriage licenses. Since her name appears on the marriage license itself, she believes that issuing these licenses to a same-sex couple constitutes her “stamp of approval” of something she believes to be a sin.
After two straight and two gay couples sued Ms. Davis for refusing to issue them marriage licenses, she was ordered to do so by U.S. District Judge David Bunning. Despite Judge Bunning’s order and despite her appeals to the Sixth District and U.S. Supreme Court being rejected, she remained defiant and was eventually jailed for contempt of court. She was released only after her deputy clerks began issuing marriage licenses this week, but could again face contempt charges if she interferes with the license process.
Now Ms. Davis isn’t the only government official who is refusing to issue marriage licenses to same-sex couples. At least two other clerks in Kentucky have also denied gay couples such licenses. Similarly, an Oregon circuit court judge has refused to marry same-sex couples. In all of these cases, these so-called public officials claim that doing so would be a violation of their First Amendment right to freely exercise their religious faith.
But is this really the case? While the First Amendment prohibits Congress from passing laws that prohibit the free expression of religious beliefs, for now at least this applies only to an individual’s personal life. Once you enter the public realm, all bets are off. The First Amendment does not bestow upon an individual the right to impose their religious values on others, or to exempt them from laws that might be inconsistent with their spiritual beliefs. The State of California, for example, prohibits discrimination on the basis of martial status. Despite the protections of the First Amendment, a Catholic landlord in that state cannot (at least not yet) refuse to rent an apartment to an unmarried couple simply because he believes living together is a sin.
Despite all of the media hoopla, political spin and claims of religious freedom, this is actually a straightforward case of a public official failing to do her job. Kim Davis is not a private citizen and her refusal to issue marriage licenses is not a matter of private conscience. She is the elected clerk of Rowan County, Kentucky. It doesn’t matter if Ms. Davis is a thrice-divorced Evangelical Christian opposed to same-sex marriage, a teetotaling Seventh Day Adventist opposed to the consumption of alcohol, or a celibate Quaker opposed to handguns. If her job requires her to issue marriage licenses, liquor licenses or gun permits, then she should do her job or resign. At least that is the situation for now.
Unfortunately, it is unlikely that Ms. Davis’s fifteen minutes of fame have been completely used up. Self-serving politicians like Mike Huckabee and conservative organizations like the Liberty Counsel will continue to use cases like hers to push their religious agenda, resulting in what legal analyst Dahlia Lithwick calls conscience creep, “the slow but systematic effort to use religious conscience claims to sidestep laws that should apply to everyone.”
Over the past 40 years, for example, the US Congress has passed laws like the Religious Freedom Restoration Act. That law requires that the federal government demonstrate a “compelling interest” before placing limits on an individual’s religious freedom. Twenty states have passed similar laws, and six other states have religious freedom legislation pending. This includes a newly introduced law in Kentucky that would protect county clerks like Ms. Davis who refuse to issue marriage licenses to same-sex couples on religious grounds.
We are already seeing the impact of these conscience claims and religious freedom laws on our personal and professional lives. For example, most states have laws that allow physicians and other health care providers to refuse to provide abortions. Some thirteen states also allow doctors to refuse to provide contraceptive services. In seven of those states, pharmacists can refuse to fill prescriptions for emergency contraceptives. Similarly, in many states doctors can refuse to treat gay and lesbian patients solely because of their personal, religious or moral beliefs. Secular for-profit companies can refuse to provide employees with access to federally mandated birth control if doing so would run counter to the religious beliefs of the owners. Private adoption and foster care agencies can even refuse to place a child in a single parent or same-sex home if that would violate the agency’s religious or moral convictions.
But this is wrong, and it leads the U.S. down a very dangerous path. As I see it, the problem with all of these conscience claims and religious freedom laws is this: they upset a long-standing balance between religious liberty and civil rights. As written, these new laws increasingly allow individuals and organizations to opt out of civil rights and anti-discrimination laws that they object to on spiritual grounds. Your religious freedoms will soon trump my civil rights. You will be able to deny me medical care, access to prescription drugs, refuse to serve me in a restaurant, refuse to rent me a hotel room, and deny me access to all sorts of public goods and services under the banner of righteousness.
That is what is truly unconscionable.
[This blog entry was originally presented as an oral commentary on Northeast Public Radio on September 10, 2015, and is available on the WAMC website.]