Is religious freedom a trump card that gives believers license to ignore any laws they don’t like?
Kim Davis, an elected county clerk in Kentucky, was recently jailed over her refusal to grant same-sex marriage licenses to gay couples. What began as a legitimate religious freedom issue has descended into chaos and confusion, spurred on by grandstanding politicians, some of the religious right’s least reflective operatives, and Davis herself.
She has hindered the public debate about religious liberty for traditionalist believers at a time when it needs serious arguments, not circus-tent theatrics.
I have argued that religious people and institutions should be allowed to live and operate in accordance with their belief that marriage is by nature between a man and a woman. A robust civic pluralism can accommodate gay couples’ legal rights and traditionalists’ religious views.
Davis’ promoters want us to believe she is no different from the mom-and-pop wedding vendors who cited their religious beliefs as constitutionally protected grounds for declining to help celebrate same-sex unions. In a breathtaking leap, some have even compared her to civil rights icon Rosa Parks.
The Kentucky situation is different because it involves a public official refusing to do her job. And while much reporting and analysis has focused on Davis herself — her background, her motives, her endgame — this is about a broader set of principles that will animate the religious freedom-gay rights debate long after Davis’ name fades from the headlines.
Conservative legal advocacy groups work hard to find plaintiffs and defendants that will win public sympathy, not just court cases. Davis is a bad defendant. However earnest a person she may be — and I have no interest in passing judgment on her personally — she is not a leading voice in this debate. To the detriment of the traditionalist side, she has aroused the most unsophisticated subset of crusading same-sex marriage opponents.
Last week, traditionalist leaders expressed doubts about the validity of Davis’ argument. Ryan Anderson of the Heritage Foundation and Rod Dreher of The American Conservative both stated that, though a reasonable accommodation could have been found, there was never going to be a way for Davis to prevent same-sex couples in her jurisdiction from receiving marriage licenses.
But, as a federal judge jailed Davis, more traditionalist leaders expressed sympathy for her. While there were meaningful shades of distinction between elites’ pronouncements on the matter, few said she should have issued the licenses. Some said she should have resigned.
On Monday, Anderson wrote an op-ed for The New York Times arguing that a law passed by the North Carolina legislature earlier this year, which provided conscience protections for civil magistrates, would have been the ideal situation in Kentucky as well.
Some of Davis’ defenders are usually sensible religious freedom advocates. But here, they join the old religious right, including the American Family Association’s Bryan Fischer, who regularly tweets about the perils of “sodomy-based marriage.” Fischer enthusiastically endorses Davis’ lawlessness.
This debate is not going away. But leaders need to decide if the Davis episode is the hill they want to die on. It raises important questions, but it is a battle that simply cannot — and should not — be won.
If a government official had a long history of turning away couples whose unions troubled her conscience, then maybe she would have a case. Did socially conservative magistrates turn away second cousins, divorcees, or gold-digging young women marrying octogenarians? Or are they only speaking up now that loving, committed same-sex couples have the right to civil marriage?
Davis and her legal team have discredited themselves and put fellow traditionalists on the spot with their indefensible position.
Serious legal minds understand that religious freedom, though a sacrosanct part of our public life, is not a trump card. It has limits and fits within a body of legal reasoning that weighs the rights of conscience against compelling state interests.
Magistrates who serve all comers are the last people we should expect to get high and mighty about the sacred meaning of marriage. I am a strong supporter of religious freedom. But Davis’ claim is a huge overreach. If you have strong views about sacred marriage, perhaps a courthouse wedding clerk is not the job for you.
(Jacob Lupfer is a contributing editor at RNS and a doctoral candidate in political science at Georgetown University. His website is www.jacoblupfer.com. Follow him on Twitter at @jlupf.)
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