When the religious beliefs of a government official conflict with the civil rights of citizens, who has the power and who wins?
Last week, Kentucky county clerk Kim Davis, through her attorneys, asked the 6th Circuit Court of Appeals to overrule the district court judge who sent her to jail when she refused to issue marriage licenses to same-sex couples. In her 126-page brief, Davis argues that the federal judge “commandeered” Davis’ county clerk office and interfered with her ability to do her job – of not issuing the licenses. She also sued outgoing Kentucky Gov. Steve Beshear, who had directed clerks to issue same-sex licenses without going through a legislative process to accommodate religious clerks.
Davis’ brief further argues that there was no question that Kentucky as a state would recognize same-sex marriage. But she argued that the state should have recognized the authority of a county clerk not to issue same-sex licenses when other counties would offer them, and that same-sex couples were not overly inconvenienced by her refusal to do so. According to the brief, same-sex couples “are indisputably financially and physically able to drive to those locations to secure a license as shown by their 6-mile and 100-mile trips to attend Court hearings in this case.”
Davis’ attorneys argue in the brief that since there were other alternatives for same-sex couples to get licenses, besides going through her government office, that her rights to control her office, and run it in a manner which would not violate her religious beliefs, should have been accommodated.
Davis does not want her name or her title to appear on any same-sex marriage licenses, because to do so would adversely affect her individual rights which she did not surrender when she took office.
Davis in fact cites Hobby Lobby to argue that just as the rights of individuals and businesses are accommodated, the rights of public officials should also be accommodated. “[I]n a similar vein, a public official has religious liberty protections underthe First Amendment and, in this case, the Kentucky RFRA, as a person…. The official capacity designation reflects the reality that an individual person occupies a public office, and the office cannot take action without the individual’s taking action.”
The brief states that Davis “is substantially burdened if she must authorize and approve a SSM license bearing her name and imprimatur as the authorizing agent because she can neither call a proposed union ‘marriage’ which is not marriage in her sincerely-held religious beliefs, nor authorize that union.”
Davis has resisted accommodations such as having others sign the licenses, etc., and the only apparently acceptable accommodation that Davis would accept would be if her office in its entirety would be excused from licensing same-sex marriages. In other words, Davis, a government official, would be accommodated but not the same-sex couples seeking marriage licenses in her office.
The result requested by Davis would create a jurisdictional carve-out in Obergefell for her county so long as she held office. In making this argument, Davis is not only trying to protect her own rights – she is attempting to use her religious beliefs in concert with the power of her office to curtail the recognized Constitutional rights of others, or at least inconvenience them.
The 6th Circuit will likely rule against Davis’ arguments, but this will set the stage for the case to be appealed to the U.S. Supreme Court. Although the Court previously refused to overturn the order incarcerating Davis for contempt of court when she first refused to issue licenses or allow her deputies to do so, after decisions in Hobby Lobby and prospectively in Little Sisters of the Poor, the Court may decide that county clerks, or indeed any government official for any reason under color of religion, may avoid recognizing rights of citizens with whom they disagree.
Under Davis’ logic, government officials could make funding decisions that favored one religious perspective over another, county zoning officials could create jurisdictional exceptions based on religion, and free speech of competing religious groups could conceivably be curtailed. Any Constitutional right is up for debate. Under the Davis scenario, if any government official decides that what you want to do is out of step with his or her religious beliefs, they could stand in the way of your rights and prevent them altogether, or at least make it a lot more difficult for you.
Oddly, a major point that seems to be all but ignored in the Davis brief is any defense to the notion that Davis’ actions violate the Establishment Clause as extended to state and local governments through the Fourteenth Amendment. Certainly, by imposing her religion upon her office, Davis is establishing her religious beliefs as law in her corner of the world, and those who seek to practice their rights in violation of her beliefs will have to go elsewhere.
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It is difficult to predict how the Supreme Court will decide a particular case. I thought Obergefell and Hobby Lobby were decided wrong. If they decide to hear the Davis case, I would think they would affirm the lower courts. The problem with Davis, as I see it, is that she has a responsibility as part of the executive branch of the government to apply the law as it is established by the legislative and judicial branches of the government. If her conscience will not allow her to perform her job, she can either step down or allow someone who will perform the duty.