Rowan County, Ky. Clerk Kim Davis’ refusal to issue same-sex marriage certificates gained tremendous media coverage over the past few months. However, media outlets failed to examine the deeper issue of her religious freedom claim. For instance:
- Did Davis break any laws?
- Why wasn’t she fired for “not doing her job”?
- As a Christian, isn’t Davis bound by Scripture to obey the civil authorities?
These are just a few questions Focus on the Family’s judicial analyst Bruce Hausknecht answers to help you understand your religious freedom rights, as well as to help you thrive in today’s challenging culture.
1. Why did Kim Davis go to jail? Did she break a law?
Bruce Hausknecht: Davis did not break any written law of either the United States or Kentucky. Many people have incorrectly suggested the U.S. Supreme Court’s same-sex marriage decision in June amounts to the “law of the land” and she was jailed for violating that “law.” However, this is not technically correct. She was jailed because Judge David Bunning, a federal district court judge, found her “in contempt of court” for refusing to obey his direct order to begin issuing same-sex marriage licenses in Rowan County, Ky. This order resulted from a lawsuit filed by the American Civil Liberties Union (ACLU) on behalf of several same-sex and heterosexual couples who were denied marriage licenses by Davis following the U.S. Supreme Court decision in June, which found a constitutional right to same-sex marriage. (Davis said she didn’t want to discriminate, so her office stopped issuing any marriage licenses.)
2. Why was she released after six days?
BH: During her incarceration, one of Davis’ deputy clerks began issuing same-sex marriage licenses in response to Judge Bunning’s order to them to do so. The judge then released Davis from jail; however, warned her not to interfere with her deputy clerks issuing the licenses. She continues to state she personally will not issue licenses, nor allow the licenses issued by her deputies to include either her name or her title as “Rowan County Clerk.” The licenses state that they are being issued are under the authority and order of Judge Bunning, not Davis. Judge Bunning, Kentucky’s Gov. Steve Beshear and the state Attorney General have all approved the wording on those licenses.
3. Why wasn’t she fired for failing to “do her job?”
BH: Davis is an elected official, voted into office as County Clerk by the citizens of Rowan County, Ky. She is not an “employee,” as that term is normally used. As such, she can only be removed by impeachment via the state Legislature or through a recall election. She cannot be “fired.” And of course, when her term is up, the voters can decide at the polls if she should continue as County Clerk, if she chooses to run again.
4. Aren’t all government-paid workers ― whether elected (like Davis) or hired as an employee to perform a government function like issuing marriage licenses ― required to “do their job” or resign?
BH: Actually, many laws provide exemptions to such government workers depending on the circumstances. There are numerous laws at the federal and state level that provide government employees, officials and citizens the opportunity to receive an “accommodation”* of their religious faith. Here are just a few examples at the federal level:
- Title VII of the 1964 Civil Rights Act contains probably the most well-known statute in the employment context, and it applies equally to federal and state workers, as well as private businesses. In general, Title VII requires an employer to “reasonably accommodate” an employee’s religious belief or practice, unless doing so would cause more than a minimal burden on the operations of the employer.
- There are federal conscience protection laws that allow government-paid health care practitioners to “opt out” of performing abortions or other medical procedures that violate their conscience.
- There are laws protecting those who conscientiously object to military service.
- Federal law makes exceptions for certain religious minorities who object to contributing to Social Security or participating in ObamaCare.
- The federal government and 21 states (including Kentucky) have a law called the Religious Freedom Restoration Act. It says that government can only burden someone’s religious beliefs or actions if it has a really important reason, and even then, it must do so in the least restrictive way possible.
* “Accommodation”: An exemption from performing an act mandated by law or policy which violates someone’s conscience.
Conscience protections are ingrained into the history and fabric of American society and government, as a reflection of and acceptance of the fact that America is diverse in its religious and moral beliefs. Davis’ request for an accommodation of her religious conscience is consistent with the best traditions of our laws and civil society.
5. Why wasn’t an “accommodation” granted for Davis, which would have kept her out of jail?
BH: The fact is Davis did plead with her governor and the Kentucky Legislature for that very thing. But the legislature’s session had already ended for the year, and the governor refused to call a special session, citing the expense. Judge Bunning said it was not within his authority in this case. In fact, in the legal papers filed with Judge Bunning in her contempt hearing, Davis’ lawyers offered six different possible “accommodations” that could easily have resulted in everyone’s interest being protected, both same-sex couples in Rowan County, as well as Davis. Several Kentucky state legislators have promised to introduce bills in the next legislative session, which would protect people such as Davis.
6. I’ve heard ever since Judge Bunning let her leave jail, she’s allowing her deputy clerks to issue same-sex marriage licenses without her name or title on them. If those licenses are valid, then why didn’t she just do that a couple months ago when the controversy arose?
BH: Davis did not receive approval for the new format until after her deputy clerk filled out the forms that way while Davis was in jail. The judge, Kentucky’s governor and attorney general all gave their approval for this simple change after the fact.
7. Is the Davis case unique — or are there other government officials around the country in similar situations?
BH: Indeed, there are numerous other examples. More than 30 magistrates in North Carolina are taking advantage of a new conscience-protection law passed there this year to decline performing same-sex marriages; a half-dozen county probate judges in Alabama have stopped issuing marriage licenses altogether; and notably, in Davis’ state of Kentucky, there are one or two other county clerks who have announced they will no longer be issuing same-sex marriage licenses. In Oregon, a state judge has been subjected to an ethics investigation for declining to perform any marriages since the June Supreme Court decision. A Texas county clerk initially refused to issue same-sex marriage licenses; but, since then she has modified her position so others in her office can issue them.
8. As a Christian, isn’t Davis bound by Scripture to obey the civil authorities in this case?
BH: This is not an easy question to answer. There are numerous Scripture verses containing that admonition (1 Peter 2:13-17, Romans 13:1-7, Titus 3:1, and of course, Jesus’ famous teaching about “rendering to Caesar” found in the gospels of Matthew, Mark and Luke.) However, there are also numerous examples of refusals to obey laws contradicting what God requires. (See Exodus 1:17; Acts 4:19; 5:29.) The stories of Shadrach, Meshach and Abednego told in the third chapter of the book of Daniel, as well Daniel’s own story in chapter 6, illustrate that obedience to God comes before obedience to the governing authorities, where it is not possible to do both.
Martin Luther King, Jr. found himself in a Birmingham, Ala. jail in 1963 for his acts of civil disobedience. He broke the civil law by organizing protests without a permit. From that jail cell he penned the famous “Letter from a Birmingham Jail” that recounts the biblical characters who disobeyed civil laws that were deemed contrary to God’s laws, and quoted from St. Augustine on the need to disobey certain laws: “An unjust law is no law at all.”
So the question of obeying civil authorities is a more complex theological issue than simply citing Romans 13. Moreover, we should respect Ms. Davis’ own conscience in determining the right thing to do in her case.
9. Isn’t same-sex marriage the “law of the land” now, and the issue is therefore “settled”? Isn’t this about the “rule of law” now?
BH: As in the case of Roe v. Wade and abortion, a U.S. Supreme Court decision, such as this, hardly “settles” the national debate over a cultural issue as controversial as same-sex marriage. Nor does it end the debate over the authority of the High Court to create constitutional “rights” out of thin air. The “rule of law” assumes that, as a nation, we are creating “just” laws fairly and democratically, and they are being accurately interpreted and applied by courts. In the case of courts who themselves disregard the rule of law in order to invent same-sex marriage (or the “right” to abortion, as another example), the rule-of-law principle has actually been undermined, and it is because of our respect for the rule of law that we must oppose those decisions.
For example, at one point in our nation’s history, the Supreme Court determined that African-Americans, whether slave or free, were not considered U.S. citizens, and that slaves were “property” and couldn’t sue for their freedom. At another point in history, the Supreme Court decided African-Americans’ constitutional rights were sufficiently protected by “separate but equal” facilities. Thankfully, as a nation, we did not “accept” these decisions as the “law of the land” and acquiesce to them.
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