Often times, religion and law collide in the messiest of ways. Values begin to be weighted against each other in order to prioritize them. Is personal religious freedom more important than having a religiously impartial government? Can the two exist together? At what point can the government be considered as limiting the religious freedom of citizens? At what point are religious citizens considered to be imposing their own religions onto others?
These are the intersections of religion and law. They are almost always controversial, personal topics. Many people become offended when their own personal agency is limited by the law. In this post and all others, I seek to argue the law based on its own merits through legal arguments. I seek to argue for what is best for a conducive society that is composed of various cultures, identities, perspectives, and backgrounds. The American Constitution set out to do just that in most respects. That is why it is the longest standing constitution in the history of the world. Therefore, I will look to it for the base of my arguments.
This week the news was filled with an issue involving everything just mentioned. Kim Davis, a government clerk of Rowan county, Kentucky, has refused to use her office to issue marriage licenses to same-sex couples. Davis has argued to homosexual applicants that her religious convictions exempt her from administering marriage licenses to such couples. Davis finds this to be true even after the June 26th Obergefell v. Hodges ruling by the Supreme Court of the United States (SCOTUS) that there is a constitutional right for homosexuals to obtain civil marriages.
The SCOTUS opinion did not in any way impinge on religious freedom. The ruling has not declared that churches, synagogues, mosques, or any other places of worship must now administer religious marriages to homosexuals. The ruling has not declared that Americans who believe in exclusively heterosexual marriage are to be incriminated for their beliefs. The ruling did not enter in any way into the domain of the “Church” within the separation of Church and State. The opinion declared that all arms of the United States government must now administer and recognize civil marriages between homosexuals. The Supreme Court has the judicial power to declare this.
In an effort to combat this ruling, former Governor Mike Huckabee of Arkansas (a 2016 Republican presidential candidate) has argued that enacting legislation is required by all states in order to implement the ruling of the Supreme Court. However, no legislation was required when Brown v. Board of Education of Topeka (1954) declared that all schools shall be racially integrated. The United States Congress did not have to legislate this opinion into written law in order for President Eisenhower to have the executive authority to summon the National Guard to protect black students after the decision. The states nor the Congress was required to enact legislation after Loving v. Virginia (1967) declared that people of different races have a right to civil marriage.
Governor Huckabee counters this point with an anecdote of President Lincoln not recognizing Dred Scott v. Sandford (1857) in order to free black slaves. Some may argue, as some did at the time, that Lincoln’s denial of the legitimacy of the Court’s ruling was lawless. Some, like Governor Huckabee, argue that President Lincoln stood up to the Court in order to protect slaves and their liberty. I argue that this comparison to this week’s events is mismatched. President Lincoln issued the Emancipation Proclamation amidst a civil war when the future of the country was extremely uncertain. Since this was an extremely unique situation at a time when the country was in peril, President Lincoln may deserve some historical forgiveness for, in a way, invalidating the power of the Supreme Court. This can also be said for President Lincoln’s declaration of martial law and suspension of the writ of habeas corpus in certain states during the war. A president does not have the constitutional authority to do so, but President Lincoln was acting within some very unique times. Since we are not currently within such times of war, I do not believe that anyone has the authority to defy a ruling of the Supreme Court.
Certain elected officials, like Governor Huckabee and former Senator Rick Santorum (another 2016 Republican presidential candidate), argue that without binding legislation by the Congress, the Supreme Court becomes a superior branch of government. Senator Santorum argues that the Congress still has the power to pass a law stripping homosexuals of the right to marriage, which is technically true. Congress can indeed pass whatever it wishes. However, the Supreme Court’s role via the decision of Marbury v. Madison (1803) gives the Court the power to judicially review the laws of the United States on constitutional grounds. Therefore, even if Congress passed such a law, it would be invalidated by SCOTUS in light of the precedence of Obergefell. Of course, this loophole around respecting the authority of the Court could continue in circles forever, but that does not create a productive, legitimate form of government. The Legislative Branch has the power to create law, the Executive Branch has the power to enforce law, and the Judicial Branch the power to review law. This is the way our government functions; therefore, the other branches of government are to yield to the constitutional review of the Court. Furthermore, the Court can be regulated by the citizenry via the democratic election of the president, who nominates justices, and of each state’s senators, who confirm justices. The Congress also has the constitutional authority to strip the Court of certain appellate powers. Therefore, the Court is an equal branch with its own checks and balances.
Now, to the specifics of what occurred this week in Kentucky. Ms. Kim Davis, the clerk of Rowan county, refused to issue marriage licenses to homosexual couples. After denying the service to multiple couples, legal action was taken against Ms. Davis. The case went through a few courts since it was appealed, but in the end, the court ordered that Ms. Davis would be violating federal law if she denied a future homosexual couple a marriage license. After this was decided, Ms. Davis returned to work and did just that. Due to this, U.S. District Judge David Brunning found Davis in contempt of the court and ordered her to jail. Judge Brunning argued that financial punishment would not suffice as other citizens could potentially crowd fund enough money to support Davis. Therefore, U.S. Marshals escorted Davis to jail.
Those are the facts of the case. Now, the legal reasoning behind the case is what most people find more controversial and more interesting. Ms. Davis was found in contempt of the court not for inserting her religion into her job or anything related to her religious convictions. She was ordered to jail for violating the contract of her employment. As an employee of the government, Davis had agreed to carry out the laws of the government. Although Kentucky did not pass a state law allowing for homosexual civil marriage, the Supremacy Clause of the U.S. Constitution requires Kentucky to follow the decisions of the U.S. Congress and the U.S. Supreme Court. Therefore, government employees of Kentucky are subject to the Obergefell opinion, as was discussed earlier. Due to this fact, Ms. Davis broke the terms of her contract by refusing to carry out the laws of the government.
Even though the court in this case did not decide the case based on anything to do with Ms. Davis’ religious conscience, it could also be argued this way. The First Amendment of the U.S. Constitution proclaims that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Since the time of the Constitution’s drafting, this has meant that there shall be a wall of separation between the Church and the State. Thomas Jefferson and others used that exact language at the time as well. This separation means that the government can never commit any official action based on one religion’s belief. This relates to Ms. Davis because she as a government employee acts as the government via her clerk office in Rowan County, Kentucky. By refusing to issue civil marriage licenses because of her religious belief, she is, in effect, imposing her religion onto other American citizens via the government. She has used the government as her vehicle to express her religious beliefs, which is expressly unconstitutional. Best-selling Christian author Rachel Held Evans put it frankly: “No one’s being jailed for practicing her religion. Someone’s being jailed for using the government to force others to practice her religion.” Ms. Davis is free to believe whatever she wishes in her personal life, but she is not free to use her government job in order to impose those beliefs onto others. That is why this case is not about religious liberty or religious conscience. This case is mainly about breaking the law and also about breaking the separation between Church and State.
Now some will say that the two previous arguments are not separate but actually bound together. They argue that Ms. Davis deserves an accommodation for her religious beliefs. Now, this does sound like a reasonable compromise initially. After all, the Kentucky Religious Freedom Restoration Act (RFRA) mandates that “religious liberty can only be limited for a compelling government interest. If religious liberty is to be limited, it must be done in the least restrictive manner possible.” So, we look at the first stipulation. I would argue along with Judge Brunning that the government does have a compelling government interest in ensuring that all Kentucky citizens can act on all their constitutional rights. Therefore, the limiting of religious liberty has grounds on which to stand.
Now, we look at the second stipulation. In this case with Ms. Davis, has the limitation of religious liberty been done in the least restrictive manner possible? We look to the other potential alternatives here. Since we have a mandate to deliver marriage licenses to all eligible citizens, we would need Ms. Davis to resign, be impeached, start signing marriage licenses for homosexuals herself, or allow her deputies to do such. Since Ms. Davis has ruled out the first three options due to her religious beliefs, we are left with the last option. That is why Judge Brunning ordered that the deputies begin issuing marriage licenses, which they did, and that Ms. Davis’ new release from jail is contingent on allowing her deputies to continue issuing marriage licenses. Since Ms. Davis has not returned to work yet, we do not know if she will violate the judge’s new order and interfere with the issuing of marriage licenses. The only way to adhere to the Kentucky RFRA is to have the deputies issue licenses without the signature of Ms. Davis. However, the removal of her name from the licenses would require a legislative vote, which would require that legislative recess be suspended. This move, according to the governor, would cost taxpayers thousands of dollars. If it is not possible for Kentucky to remove Ms. Davis from the licenses, then we are left with no other possible accommodations. Therefore, Ms. Davis is required to begin issuing marriage licenses or be sent to jail once again.
I find it particularly infuriating that some evangelical Christians who fight for Ms. Davis to use her government job in order to impose her Christian views at the same time also condemn the alleged injection of Muslim Shariah law into our government. The two are the same. No one religion is to be favored over another in the United States, especially not a single interpretation of one religion. That is the very essence of why the government is to remain secular. Some Christians would protest in the streets if, say, a Muslim clerk deemed it their religious conviction to not wed couples of different races. Another example, given by Lambda Legal Director Jon Davidson, is that some conservatives would be up in arms if a Quaker would not issue government gun permits based on his/her pacifistic convictions. Bringing religion into government muddies all issues and would make governing justly near impossible.
Even bringing personal convictions into it rather than just religious beliefs makes governing effectively impossible. As former Secretary of Labor under President Clinton Robert Reich said, “a clerk who’s a committed environmentalist can refuse to issue building permits, and a clerk who believes in a $15 minimum wage can refuse to issue Walmart a permit to build a new store” if we allow for such exemptions in government. The rule of law must be followed in order for government to function.
This woman is not this era’s Rosa Parks or Martin Luther King, Jr., like some conservatives have argued, since she is defying the law and committing willful civil disobedience. Those two heroes fought for Americans to have civil liberties. Ms. Davis was not sent to jail over her attempt to somehow fight for the civil liberties of Christians. She was sent to jail for breaking the law and breaking the terms of her employment contract while also trying to strip other Americans of their civil liberties. Rosa Parks and MLK never attempted to take away the civil liberties of other Americans.