We Don’t Need Kim Davis to Be in Jail

We Don’t Need Kim Davis to Be in Jail

International New York Times | 7 September 2015

KIM DAVIS, the clerk in Rowan County, Ky., went to jail last week, and there was no good reason for her to be there. Americans can expect more conflicts over religious conscience and same-sex marriage if we don’t find a way to coexist peacefully. Ms. Davis has become a symbol of what happens when we don’t.

Some on the left say that you must do every aspect of your job, despite your beliefs, or resign. But this has never been the practice in the United States. We have a rich history of accommodating conscientious objectors in a variety of settings, including government employees. Do we really want to say that an otherwise competent employee must quit or go to jail if there is another alternative?

We shouldn’t want that. Indeed, one state — North Carolina — has already shown how to accommodate conscience and ensure that all citizens receive the legal documents, including marriage licenses, for which they are eligible.

The first thing to acknowledge, however, is that Ms. Davis didn’t cause this problem. The Supreme Court did. When the court ruled in June that same-sex marriage is a constitutional right, it redefined marriage for the nation, in a way that I and many others do not believe was constitutionally justified. And it redefined Ms. Davis’s job.

Had same-sex marriage come to Kentucky through the Legislature, lawmakers could have simultaneously created religious liberty protections and reasonable accommodations for civil servants. But the Supreme Court decided this issue itself — and, as predicted by the dissenting justices, primed the nation for conflict.

Because each marriage license issued by the clerk’s office bore her name and title, Ms. Davis concluded that her religious beliefs meant she could not have her office issue licenses to same-sex couples. So she had the office stop issuing them entirely.

Ms. Davis felt she had to follow her conscience. And whether or not we share her Christian faith, and its particular positions about issuing civil marriage licenses, is beside the point.

That, after all, is what religious freedom and religious accommodations are all about: creating the space for citizens to fulfill their duties, as they understand them, to God — regardless of what the rest of us think. Of course, religious freedom and accommodations aren’t absolute. Federal anti-discrimination law requires a reasonable accommodation of religious belief where it does not place undue hardships on the employer. And Kentucky, like many other states, provides additional protection against unnecessary government burdens on religion.

So it was incumbent upon the government to try to work out a solution. Ms. Davis wasn’t trying to prevent same-sex couples from getting marriage licenses at all; she just didn’t want her name or title on the paperwork. That’s why she wouldn’t allow her deputies to issue the licenses.

Kentucky accommodates conscience for other licenses. Why not marriage? Yet Gov. Steven L. Beshear issued a mandate telling all county clerks to issue licenses to same-sex couples without exception. When asked to call a special session of the Legislature to try to work out a reasonable accommodation, he said it could wait until January.

That’s why Ms. Davis ended up in court. But it shouldn’t have gotten to the point where this county clerk was being hailed as either a hero or a villain. The Kentucky Legislature should have looked instead to North Carolina.

Sensing that the Supreme Court might redefine marriage, the North Carolina Legislature passed a law earlier in June creating a system to accommodate — as far as possible — the conscientious beliefs of magistrates who objected to performing same-sex marriages and clerks who objected to issuing licenses.

The North Carolina law made clear that no eligible couple could be denied a marriage license, but officials could recuse themselves should they have sincere objections. By notifying a superior of their objection ahead of time, the clerks could protect their rights of conscience while ensuring that no couple would be inconvenienced.

Perhaps a similar solution could be found in Kentucky, by removing an individual clerk’s name and title from a marriage license. The state alreadyamended licenses from “Bride” and “Groom” to “Party 1” and “Party 2.” Why not make another change?

The conflict over same-sex marriage is not settled, but it shouldn’t be playing out in a Kentucky jail. And while the debate in Kentucky focused on a public official, others will continue to crop up involving private citizens — bakers, florists, photographers — whose beliefs may conflict with their ability to help celebrate same-sex weddings.

In the aftermath of the court’s marriage ruling, we need not perpetuate a culture war, and we need not seek a winner-take-all solution. Peaceful coexistence is possible. North Carolina gives us a good example on how to proceed.

Ryan T. Anderson is a senior research fellow at the Heritage Foundation and the author of “Truth Overruled: The Future of Marriage and Religious Freedom.”