Clerks, conscience, and the case for common ground

September 3, 2015

By Charles C. Haynes

     On August 31, the U.S. Supreme Court denied an appeal from Kim Davis, a county clerk in Rowan County, Kentucky who objects on religious grounds to issuing same-sex marriage licenses.

     Undeterred, Davis turned away a gay couple the very next day. When the couple asked under whose authority she was acting, Davis replied "under God's authority."

     With those words, Davis joined the long list of religiously motivated conscientious objectors in American history — from both the Left and the Right — who have used civil disobedience to defy laws they consider unjust or immoral.

     From pacifists refusing combat service to civil rights workers sitting in at lunch counters to pharmacists who will not provide the "morning after pill," the United States has a storied and contentious history of dissent compelled by moral and religious convictions.

     Of course, when conscientious objectors like Kim Davis challenge laws they consider unjust, they must be prepared to pay a price. A federal judge has now jailed Kim Davis for contempt of court.

     Davis is a high-profile example of civil disobedience by public officials opposed to gay marriage that is playing out in other states. Despite the Supreme Court's ruling in June upholding same-sex marriage as a constitutional right, some county clerks and other officials still refuse to issue marriage licenses to same-sex couples.

     Some states, including lawmakers in Kentucky, are considering legislation like the law recently enacted in North Carolina that would permit judges and other public officials to opt out of performing marriage — as long as that includes all marriages. But this arrangement risks offending gay couples that may be denied service — or have difficulty finding service — on what is supposed to the happiest day of their lives.

     Utah has a better idea.

     In March, the Utah legislature passed compromise legislation that went a long way toward both protecting religious liberty and prohibiting discrimination against LGBT people. One of the law's key provisions ensures that county clerks' offices perform marriages and that a clerk be available to marry same-sex couples.

     A clerk may opt out of performing gay marriage if, and only if, other clerks are readily available to issue the license and perform the ceremony. A clerk who chooses to opt out of gay marriage may not perform any marriages.

     Under this arrangement, gay couples are served (they will not know who, if anyone, in the clerk's office has opted out) and religious claims of conscience are accommodated.

     Replicating the Utah compromise in Kentucky would probably not satisfy Kim Davis.

     Not only does Davis refuse to issue licenses to gay couples, she refuses to allow other clerks in her office to do so. If she continues to turn gay couples away, the only recourse is to remove her from office.

     Protecting religious conscience is a key American principle — but it does not extend to denying gay couples in Rowan County the ability to exercise what the Supreme Court has recognized as a constitutional right.

     There is, however, considerable common ground between refusing service to gay couples and coercing all clerks to violate their conscience.

     Ensuring that all couples seeking marriage licenses are immediately served while making provision for individual clerks to opt out on religious grounds is a compromise that upholds both marriage equality and liberty of conscience.

     The defiant stance of Kim Davis has once again stoked the culture wars. She is mocked by some on one side as a buffoon and bigot — and hailed by some on the other side as the next Rosa Parks.

     The challenge for the rest of us (and that, I suspect, is most Americans) is to get beyond the rhetoric and drama and find a way forward that reflects who we are as a people — at least on our best days.

Charles C. Haynes is vice president of the Newseum Institute and executive director of the Religious Freedom Center. E-mail: chaynes@newseum.orgWeb: Twitter: @hayneschaynes.

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