Kim Davis, clerk of Rowan County, Kentucky, was remanded to jail by a federal judge on Thursday for her continued refusal to issue marriage licenses to same sex couples. She says to do so would violate her religious beliefs and—as her lawyers put it—“substantially burden” her First Amendment freedom of religion.
Either Davis wants to go to jail for her faith, or she should get a new lawyer, because that argument seriously confuses the line between her rights as a citizen and her role as a public official.
As a citizen protected by the First Amendment, Davis is absolutely free to believe that homosexuality is “a Heaven or Hell decision.” In fact, the U.S. Supreme Court ruled in 2011—a case involving the late provocateur Fred Phelps—that she is free to chant hateful anti-gay slogans at military funerals if she wishes. She can’t be forced to attend a same-sex wedding, to participate in one, or to send a gift to the happy couple.
But the First Amendment does not give her the power to decide whether same sex marriages are lawful in the State of Kentucky. That question was settled this summer by the Supreme Court, which ruled 5-to-4 that the U.S. Constitution guarantees the freedom to marry in all 50 states.
Davis has said that she “never sought to be in this position,” with her faith telling her to ignore the law. But in fact, she did seek it—last year, when she ran for the office. Under Kentucky law, county clerks are responsible for certifying that applicants for a marriage license have met the legal requirements to wed. Are they both freely consenting and over 18? If younger, do they have permission from parents or guardians? Have they paid the licensing fee? And so on.
These requirements apply equally to same sex couples, and once they are met, the job of the county clerk is to issue a license—regardless of whether she personally believes the pair should get married.
The heat around same-sex marriage is obscuring what a simple distinction this actually is. But suppose the Rowan County Clerk was a devout Hindu. It would not be permissible to force her to eat beef at an office function, for that would violate the Hindu taboo on harming cows. But that official would not be allowed to refuse to issue a marriage license to a couple with plans to serve beef at their wedding reception, nor could a Hindu official deny a construction permit just because the building is intended to be a steakhouse.
Another public official’s faith might countenance arranged marriages of children. The First Amendment would protect her freedom to believe that such marriages are culturally appropriate. But she would not be permitted to act on that belief by issuing a marriage license to a child.
A Quaker pacifist who serves as a county clerk has a right to believe that war is an immoral violation of the Biblical commandment against killing. But that doesn’t mean that she could refuse to issue a marriage license to a soldier or a Marine.
In short, Davis’s private, personal beliefs are covered by the First Amendment. But when she steps into her official role, she is no longer a private citizen—she is now an agent of the government. And the same First Amendment that protects her private freedom of religion bars the government from having any official religious beliefs.
Davis has tried to wriggle out of her dilemma by refusing to issue any marriage licenses at all. But that’s another way of saying that she doesn’t want to do her job. It’s not as if she has been conscripted into service. A number of other candidates also wanted the job when Davis ran in 2014.
The solution for Kim Davis is simple—though she may find it painful. Resign as Rowan County Clerk. Then, if she wants to, she can write letters to the editor or march wearing a sandwich board or troll the Internet or shout from the rooftops to express her views on same sex marriage. Meanwhile, her fellow citizens can get on with their constitutionally protected lives.