Zealot or Martyr? Kim Davis and Religious Freedom

By Derek Willie

Derek Willie is a freshman at the University of Pennsylvania.

On September 8th, 2015, while thousands of Christians in Iraq remain in perpetual persecution, poised to die at the hands of Islamic State extremists, American conservatives coronated Kim Davis as a martyr of the movement to stop, what they allege to be, the criminalization of Christianity in the United States. Mike Huckabee, quite obviously attempting to appear as Davis’s loyal spiritual guardian and worthy presidential candidate, romantically offered to go jail in her place, arguing that Davis was persecuted for her religious opposition to same-sex marriage. [1]

Davis was not forced to marry a woman, nor was she commanded to officiate a same-sex wedding or to attend a church where same-sex marriage is not condemned as an abomination; she was simply asked, by the Supreme Court, to obey the law of the land and issue marriage licenses to same-sex couples. When she refused, she was held in contempt of court and sent to jail, the legal response to anyone defying a court order. [2] Regardless of the court’s order and the subsequent issuance of same-sex marriage licenses in Rowan County, there lies a critical legal question in Ms. Davis’s claim that her religious beliefs forbid her from executing the law through her office as county clerk. Does the first amendment’s free exercise clause protect Kim Davis from incarceration or forced resignation if issuing licenses for same-sex marriage truly does violate her religious conscience?

In order to begin analyzing Davis’s case, we must understand her official role as county clerk. One of her office’s most important responsibilities is to issue marriage licenses to couples that meet the Commonwealth of Kentucky’s requirements for marriage. Since the Obergefell decision and Kentucky Governor Steve Beshear’s order to enforce the ruling in the Commonwealth, this has included same-sex couples. [3] Six deputy clerks work alongside Davis, including her like-minded son, all of whom are authorized to issue marriage licenses. [4] Therefore, her objection was not necessarily that she was being forced to issue licenses herself, but that her deputy clerks, as agents of Davis, were issuing licenses that were legally authorized by her, holding her name. [5] Davis requested that the Commonwealth outsource the responsibility to another county clerk’s office or the Commonwealth itself; the Governor denied her request. [6]

While the Constitution grants the right to free exercise of religion, it does not grant the right to use religion to obstruct a legal process-- in this case, marriage.  Looking back to October 2008, inconsistencies in Davis’ argument become apparent. In October of that year, Davis obtained her third divorce. [7] At the time, no-fault divorce laws were in effect, despite opposition by some Christians, considering that the Bible forbids divorce except on the basis of sexual immorality. [8] If there had been a clerk who was morally averse to divorce and who could not sanction it without violating his or her religious conscience, and Davis had asked him or her for a divorce without proof of sexual immorality, by Davis’s logic, it would be within the clerk’s constitutional right to deny Davis her divorce. If we simply exhaust Davis’s line of reasoning, we find ourselves in a situation where any clerk could deny his or her constituents certain services by arguing that their provision would violate his or her religious conscience.

Jonathan Adler offers another potent analogy in The Washington Post:

Someone who objects to war due to his religious conscience has a right to be a conscientious objector and not serve in the military, even were there to be a draft. But he does not have the right to serve as a military officer, draw a paycheck from the military and then substitute his own personal views of when war is justified for that of the government. [9]

Adler implicitly proposes that Davis could quite easily avoid issuing marriage licenses if she resigned her position as clerk. And while resignation is certainly not a glamorous option for anyone in power, shouldn’t it far outweigh a violation of conscience? Still, many argue that resignation would pose a substantial burden on Davis for following her convictions. However, if her convictions render her unable to fulfill the most basic requirement of her job-- to perform public duties in accordance with Kentucky and United States law-- then she is clearly unfit to serve as Rowan County’s clerk.

However, Davis’s refusal to issue marriage licenses to same-sex couples in Rowan County has far greater implications: it demonstrates an almost theocratic encroachment on the rights of her constituents and more generally, affronts the rule of law in her jurisdiction and in her country. Columbia Law School Professor Katherine Franke argues that by denying marriage licenses to LGBT couples in Rowan County, Davis “is rendering her private religious beliefs public policy. So the same-sex couples in Kentucky are being asked to pay the price of her religious observance.” [10] Davis’s religious ideology prohibited same-sex couples in Rowan County from getting married, thereby codifying her beliefs as the dominating law in her jurisdiction. Davis did nothing short of creating an establishment of religion in Rowan County. Yes, Davis did ask Governor Beshear to find an alternative procedure that would not require her office to issue the licenses, but she has no right to use her religious dogmatism to burden the state and force an unnecessary and potentially complicated change in legal procedure. [11] It was not the Supreme Court or any federal judge who impinged on the constitutional rights of others—it was Kim Davis.



[1] Cannon, Catherine. "Mike Huckabee: I'd Go to Jail in Kim Davis' Place." CBSNews. September 8, 2015. Accessed September 11, 2015. http://www.cbsnews.com/news/mike-huckabee-id-go-to-jail-in-kim-davis-place/.
[2] Gutierrez, Gabe, and Jon Schuppe. "Judge Orders Kim Davis Freed from Kentucky Jail." NBC News. September 9, 2015. Accessed September 11, 2015. http://www.nbcnews.com/news/us-news/judge-orders-kim-davis-freed-kentucky-jail-n423541.
[3] Schuppe, Jon. "Kentucky Clerk Kim Davis Asks Court to Block Governor's Order." NBC News. September 7, 2015. Accessed September 11, 2015. http://www.nbcnews.com/news/us-news/jailed-kentucky-clerk-kim-davis-asks-court-block-governors-order-n422961.
[4] Cannon, Catherine. "Mike Huckabee: I'd Go to Jail in Kim Davis' Place." CBSNews. September 8, 2015. Accessed September 11, 2015. http://www.cbsnews.com/news/mike-huckabee-id-go-to-jail-in-kim-davis-place/.
[5] Gutierrez, Gabe, and Jon Schuppe. "Judge Orders Kim Davis Freed from Kentucky Jail." NBC News. September 9, 2015. Accessed September 11, 2015. http://www.nbcnews.com/news/us-news/judge-orders-kim-davis-freed-kentucky-jail-n423541.
[6] Schuppe, Jon. "Kentucky Clerk Kim Davis Asks Court to Block Governor's Order." NBC News. September 7, 2015. Accessed September 11, 2015. http://www.nbcnews.com/news/us-news/jailed-kentucky-clerk-kim-davis-asks-court-block-governors-order-n422961.
[7] De Vogue, Ariane. "Kentucky Clerk Who Won't Issue Marriage Licenses Divorced Three times - CNNPolitics.com." CNN. September 2, 2015. Accessed September 11, 2015. http://www.cnn.com/2015/09/02/politics/kentucky-same-sex-marriage-kim-davis-gay-marriage/.
[8] "Bible Gateway Passage: Matthew 19:9 - New International Version." Bible Gateway. Accessed September 11, 2015.  https://www.biblegateway.com/passage/?search=Matthew+19%3A9
[9] Adler, Jonathan. "Justice Scalia Explained Why Kim Davis Should Issue Marriage Licenses to Same-sex Couples or Find a New Job." Washington Post. September 2, 2015. Accessed September 11, 2015. https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/09/02/justice-scalia-explains-why-kim-davis-should-issue-marriage-licenses-to-same-sex-couples-or-find-a-new-job/.
[10] "Law Professor: Davis Can't Evoke Religion To Deny Marriage Licenses." NPR. September 1, 2015. Accessed September 11, 2015. http://www.npr.org/2015/09/01/436673707/law-professor-davis-cant-evoke-religion-to-deny-marriage-licenses.
[11] Schuppe, Jon. "Kentucky Clerk Kim Davis Asks Court to Block Governor's Order." NBC News. September 7, 2015. Accessed September 11, 2015. http://www.nbcnews.com/news/us-news/jailed-kentucky-clerk-kim-davis-asks-court-block-governors-order-n422961.

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