Kim Davis and the limits of religious freedom

Opinion, LGBT, NakedLaw, News, Rights

How surreal for me to return home from a freewheeling week at Burning Man – the 70,000-strong arts community in the Nevada desert that’s all about inclusion and love – to read about a Kentucky official so opposed to recognizing same-sex marriage that she attempted to shut down all marriages in her county, then went to jail for defying a court order telling her to knock it off.

As you probably know by now, Kim Davis, the elected County Clerk for Rowan, Kentucky, responded to the US Supreme Court’s Obergefell v. Hodges decision requiring all fifty states to recognize same-sex marriages by not only refusing to process applications for gay weddings, but by refusing to process ANY marriage applications. This slick “see, I’m not discriminating!” approach is sadly reminiscent of counties in the South that shut down public swimming pools during the civil rights era rather than comply with court orders requiring racial integration. Didn’t fly then. Doesn’t fly now.

Always, it seems, religion is used as the justification to deny rights to historically despised groups. Then, African Americans. Now, our LGBT friends and neighbors.

Free to believe, not free to act

So what of Davis’ religious freedom claim?

True, her First Amendment rights grant her the basic, free exercise of her Apostolic Christian faith. But that same constitutional provision contains the establishment clause, which bars her from openly adopting a policy that promotes her own religious convictions at the expense of others. American courts have long held that marriage is a fundamental constitutional right. While she may believe anything she likes, Davis does not have the right to deny that fundamental right to others.

The free exercise of religion enshrined in the First Amendment has two parts, the freedom to believe and the freedom to act. The first is absolute. The second is not. Conduct can be and often is regulated. General laws that have the incidental effect of burdening a particular religious practice are often upheld. Your freedom to practice your religion ends when you begin harming me.

Why the law is the law

Davis was ordered by her governor to comply with Obergefell and issue same sex marriage licenses. His goal was not to impinge on her religion, but to comply with the Supreme Court ruling, as he is required to do. As Judge David L. Bunning put it:

It does not seem unreasonable for plaintiffs, as Rowan County voters, to expect their elected official to perform her statutorily assigned duties. And yet, that is precisely what Davis is refusing to do.

And while Davis says that processing forms requires her to “authorize” same-sex marriage in violation of her religion, the judge analyzing her case found otherwise. Davis’ job is to give forms to marriage applicants, then certify that the information on the forms is accurate and the couple is qualified to marry under Kentucky law (i.e. that they are over eighteen, not married to someone else, and not related). “Davis’ religious convictions have no bearing on this purely legal inquiry,” Judge Bunning properly found.

Davis had the option of complying with the law and her oath of office, and processing marriage licenses for gay and straight couples alike; if she believed she could not do her job because of her religious convictions, she could resign. She chose neither and was jailed, as people are when they intentionally flout court orders. When her deputies, in her absence, issued marriage licenses to all qualified applicants, the judge released her after Labor Day.

Why stop with gay marriage?

The implications of her religious freedom argument affect more than just same-sex marriage. What about refusing marriage licenses for interfaith marriages? Or for interracial marriages? Or between divorced parties? (Davis herself is on her fourth marriage. The Bible is clear on the point that divorce is forbidden and remarried people are adulterers living in sin. She appears to have allowed herself an exemption.)

Clearly not. This would create chaos. Not every job is suited to every person. Davis would do better to find herself another line of work.

Some on the right see Davis’ action as an indication the American people are not ready for same-sex marriage nationwide. But the Obergefell decision has been overwhelmingly accepted and complied with. One defiant clerk in a tiny Kentucky county does not cancel out the majority of Americans (especially young people) who support marriage equality.

Our nation’s history teaches two things: we move toward enlarging rights, welcoming previously despised groups in our legal protections. And religious opposition to civil rights, always present as groups seek inclusion, is on the wrong side of history.

And one more thing: religion changes. Many Christian religious groups now support marriage equality, and as time marches on, many more will do so, just as they now permit divorce.

In the meantime, marriage equality will be properly protected by the courts, because gay and lesbian Americans are entitled to full equal rights.

The views and opinions expressed here are those of the author and do not necessarily represent those of Avvo.