Kim Davis, the Democratic county clerk of Rowan County, Kentucky, is now out of jail. She had been placed there in contempt of court after refusing to issue marriage licenses to four couples, two of which were heterosexual and two of which were homosexual. She did so because of a religious objection to same-sex marriage.
Davis’ imprisonment sparked a national debate about the limits of religious freedom.
Her opponents rightly point out that Davis is an elected public official. Public officials have a duty to carry out the law. Religious freedom cannot be used as an excuse to deny any citizen the benefits of the law, in this case civil marriage.
However, Davis is not asking the state of Kentucky to deny civil marriage to same-sex couples. Rather, she is asking for a religious accommodation.
Davis was wrong in straight up refusing to issue licenses. That refusal was an extreme reaction that can’t be accommodated.
However, Roger Gannam, one of Davis’s attorneys, told CNN that “If (Davis’ deputies) can issue licenses under someone else’s authority…Kim Davis would not stand in the way of that.”
Kentucky law requires that marriage licenses bear a county clerk’s name on them. Davis believes that having her name on the document amounts to her condoning what she sees as a sinful relationship. Allowing her deputies to issue the marriage licenses without her name on the document seems like a very reasonable compromise.
Some would argue that she should resign. After all, she can’t do the job for which she was elected exactly as the law requires. This isn’t an unreasonable position either.
However, both Kentucky and federal law allow for accommodation and limited exemption from employment practices or law.
As an example, the Equal Employment Opportunity Commission is litigating a case in which two Muslims were fired from a trucking company for refusing to transport alcohol.
The EEOC believes that Title VII of the Civil Rights Act of 1964 requires employers to offer religious accommodation, and firing someone after they refuse to violate their religious beliefs constitutes discrimination on the basis of religion.
The government also applies this standard against itself. Sikhs are required to carry a small ceremonial blade, called a Kirpan, as an article of faith. An IRS employee in Houston was fired when she couldn’t come to work with her Kirpan, an object the government did not allow in the building because it’s a blade. She sued, and in 2014, the case was settled, and she now has special permission to bring the Kirpan within certain government buildings.
Even the military is not exempt from religious accommodations. The military generally does not allow for beards. However, many Muslim men believe that beards are a required part of their faith. The military now allows beards as part of a religious accommodation when it does not interfere with the military’s mission.
Kentucky also has a Religious Freedom Restoration Act, and it would be the relevant law in this case.
That law provides that “the right to act or refuse to act in a manner motivated by a sincerely held religious belief may not be substantially burdened unless the government proves…that it has a compelling governmental interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest.”
Requiring that marriage licenses be issued to same sex couples is surely a compelling government interest, but it’s hard to believe that requiring that Davis have her name on the licenses is the least restrictive means of achieving that goal.
One doesn’t have to agree with religious accommodation, but to borrow an argument of many of Davis’ critics, it’s the law of the land. Many of Davis’ critics have launched ad hominem attacks against Davis for being on her fourth marriage, ignoring that her first three ended before her conversion.
They would do better to explain either why religious accommodation would be unreasonable in this case or why the United States should end a decades old policy of religious accommodation generally.