Conscience, Human Rights, and a Kentucky Clerk
So inevitably, a blog that’s all about religious freedom would need to comment on the ongoing troubles of Kentucky clerk Kim Davis, and her stand against issuing marriage licenses to same-sex couples. I didn’t want to rush on that right away, because I wanted to do so thoughtfully, and dig underneath the impulsiveness and spin of both right- and left-wing media… and also add some context from the experience of a Canadian, living in a nation where marriage equality happened back in 2006 without a “Christian genocide” (I’ll discuss that sort of phrasing in a later post) occurring.
Because the “conflict between LGBT human rights and religious freedom” is actually remarkably un-complicated, when you drill down to the bottom of it.
First, the particulars. Kim Davis is the elected (2014 — as a Democrat, ironically) clerk in Rowan County, Kentucky. After the Obergefell v. Hodges U.S. Supreme Court ruling, she chose to defy a U.S. Federal Court order which required her to issue marriage licenses to same-sex couples. Saying she was acting “under God’s authority,” she was jailed for contempt of court, on September 3rd and may face charges of official misconduct.
Here are some of the points that her legal team, Liberty Counsel, has made on her behalf:
“Davis only asked that the Kentucky marriage license forms be changed so her name would not appear on them. She would record any license without her name affixed. Marriage licenses remain in county records permanently. Davis said, “I never imagined a day like this would come, where I would be asked to violate a central teaching of Scripture and of Jesus Himself regarding marriage. To issue a marriage license which conflicts with God’s definition of marriage, with my name affixed to the certificate, would violate my conscience.”
“Before the U.S. Supreme Court issued its opinion in Obergefell on June 26, 2015, 57 clerks, including Davis, wrote a letter to Kentucky legislators during the regular session, pleading with them to “get a bill on the floor to help protect clerks” who had a religious objection to authorizing the licenses. The Kentucky Clerks Association also recommend that the names of clerks be removed from the forms.
“… Kim Davis does not hate homosexuals or lesbians, as she explained: “I have no animosity toward anyone and harbor no ill will. To me this has never been a gay or lesbian issue. It is about marriage and God’s Word. It is a matter of religious liberty….”
“… The Supreme Court did not change Kentucky’s marriage law or its forms, but invalidated the legislation limiting marriage to opposite sex couples…”
There are a few other points at that link establishing her God credentials, and discussing her divorces, which in my opinion have been (perhaps fairly, but overblown) touted in media as showing her own hypocrisy. Those points are irrelevant to the specific discussion here.
Liberty Counsel’s statements are a bit dubious.
Davis not only refused to sign and provide the licenses: a major part of the contempt ruling was because her deputies were not allowed to issue the licenses, either. (Following Davis’ jailing, 5 of 6 subsequently have started issuing licenses, but without Davis’ signature)
Additionally (this is hinted at in one of the above points, but not made clear), the licenses may not be valid without her signature. Davis has in fact argued that they are not. Admittedly, this isn’t clear — a judge questioned about the discrepancy only remarked that couples getting licenses in Rowan County do so at their own risk — but it’s certainly likely that Liberty Counsel or another right-wing group would attempt to contest the legality of those licenses, at some point. Either way, Davis is in essence demanding the right to deny all licenses from her county office, altogether, which goes beyond the jurisdiction of personal conscience.
There are nuances, and this is no exception. I’ve touched on the first two, and there are also others:
- As mentioned above, she used her power to disallow her deputies to issue the licenses;
- Also mentioned above, it’s not simply a question of a refusal of a signature, but also an attempted refusal of legal standing of the licenses;
- Davis is a public employee, and responsible to all citizens of the State of Kentucky;
- As a public employee, she is subject to the legal principle of the separation of church and state;
But a crucial point, independent of all of the above, is probably that in any dispute centering on a conflict in rights, there should be at least some effort to accommodate. All of the above assumes that LGBT human rights cannot be accommodated at all, without automatically invalidating the rights of Christians to live their faith.
But it’s not an either/or proposition. There is a key flaw in the way this is framed.
In Canada, the conscience debate has had some instructive resolution in the medical field (although there are occasionally attempts to resurrect it). Many provincial Colleges of Physicians and Surgeons across the country have some form of policy that allows medical professionals to decline to participate in processes that violate their conscience, provided that a timely referral is made and the patient is able to access the medical care they need, in a timely manner. “Timely” is somewhat relative, and the rules don’t always work well (honestly, sometimes the process fails and care is denied or unreasonable obstacles are created), but it is at least a formal acknowledgement that there is a duty to accommodate, in a way that is relatively equitable for both parties.
What is instructive is that in Kim Davis’ very public demand for her right to freedom of religious conscience, this is not even a question. The closest it ever came to being addressed at all was when some supporters claimed it’s a reasonable accommodation to require county residents to drive to a neighbouring county to obtain their licenses. It’s not hard to recognize that that’s actually an undue hardship.
As someone who has advocated for trans* people and know how the Colleges’ policies fail in Canada, I don’t consider theirs an ideal solution. However, the point is that there could be some form of middle ground, even if imperfect. The State of Kentucky could amend their laws to ensure the validity of marriage licenses without Davis’ signature (to Davis’ credit, she does appear to have asked, and was ignored by legislators), and require that at least one person in the office be present besides herself who would be willing to issue them. But among the far right, this isn’t even a discussion. Among the far right, the objective is simply to have the right to deny licenses altogether, with no compromise being considered.
And that speaks volumes about Davis’ and supporters’ demands for religious freedom.
In closing, here’s a hint about what Davis’ supporters (and arguably perhaps puppetmasters) really feel about things:
“[Wallbuilders’ David] Barton, predictably, responded by asserting that Davis is entirely in the right to refuse to allow her office to issue marriage licenses to gay couples because “the Founding Fathers made it real clear that the laws of God are higher than the laws of man.”
“This is a law of God. Man’s law is not allowed to contradict God’s law,” Barton said, which means there can be no justification for jailing Davis because she is upholding God’s law…”
(From my sister blog, Today In Religious Freedom)