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Kentucky Clerk Kim Davis Doesn’t Seem to Get How the Constitution Works

4 minute read

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.

Portraits of the Gay Marriage Revolution

Elaine Harley, 43, graphic designer & Mignon R. Moore, 42, professor at UCLA Together for 11 years, married in New York City in March 2012, live in Los Angeles Elaine (left): “For me, marriage was the natural next step in the progression of our lives together. Marriage represents stability. After getting married I found that people had more respect for our union, and it gave our relationship a greater sense of legitimacy in society.”Peter Hapak for TIME
Elaine Harley, 43, graphic designer & Mignon R. Moore, 42, professor at UCLA Together for 11 years, married in New York City in March 2012, live in Los Angeles Mignon (right): “As we recited our wedding vows I got chills. Standing before family and friends vowing our intention to be united together and to create a lifelong bond was very special and meaningful.”Peter Hapak for TIME
Sarah Kate Ellis-Henderson, 41, marketing executive & Kristen Ellis-Henderson, 42, songwriter and guitarist Together for 8 years, married in St. Luke’s Episcopal Church in Sea Cliff, N.Y. in October 2011, parents to 4-year-olds Thomas and Kate, live in Sea Cliff, N.Y. Kristen (right): “Sarah and I got married shortly after equality passed in New York State. It's difficult to put into words what it felt like to validate our relationship that way in front of our family, friends, and neighbors. I often get choked up with emotion when trying to talk about it. Exhilarating. Justifying. Romantic. Amazing. None of those words individually captures it. Since becoming mothers, our tireless efforts for equality are more for our children than ourselves. We think of our kids on the playground with every other child they are growing up with - most have married parents. And now our children do too.”Peter Hapak for TIME
Sarah Kate Ellis-Henderson, 41, marketing executive & Kristen Ellis-Henderson, 42, songwriter and guitarist Together for 8 years, married in St. Luke’s Episcopal Church in Sea Cliff, N.Y. in October 2011, parents to 4-year-olds Thomas and Kate, live in Sea Cliff, N.Y. Sarah Kate (left): “I am wildly optimistic [about the Supreme Court considering the issue of gay marriage]. It feels like the night before Christmas. As a mother and a parent, it’s so deeply important for me. You bring children into this world to give them every opportunity. When you’re a same sex couple, you already know the cards are stacked against you so, in a way, you fight harder for a level playing field for your kids. It’s so important for my kids to be able to say my parents are married and know we’re recognized the same as other people.”Peter Hapak for TIME
Jake Harrison, 31, interior design & Christopher Cunningham, 38, talent agent Together for 4 years, live in Los Angeles Jake (left): “I have friends who are married in the state of New York. I never wanted to do it unless it would be everything that comes with it – 100%. If this becomes a federally recognized thing, it’s a game changer. We live a very married life. We’ve lived together for a couple of years. It’s not that there would be any major changes there, but it would be nice not just for paperwork, but to have something that would validate it to other people.”Peter Hapak for TIME
Jake Harrison, 31, interior design & Christopher Cunningham, 38, talent agent Together for 4 years, live in Los Angeles Christopher (right): “We met in Brooklyn in 2008 and we pretty much knew a week in that we wanted to spend the rest of our lives together. Getting married always seemed like something that wasn’t an option and never would be so we tried not to think about it too much. We knew we were happily committed and we made do with that. Now, just because of the way things are changing so quickly, we might get married.”Peter Hapak for TIME
Russell Hart, 31, hair salon owner & Eric LaBonté, 42, film and television set designer Together for 7 years, legal domestic partners, engaged since 2010, live in Los Angeles Russell (left): “I don’t necessarily need a piece of paper to tell me that my relationship with my partner is valid, but we think about having kids and I am constantly terrified about the little harried details that no one wants to deal with. If something happens to one of us, it could potentially get crazy. Straight married couples don’t realize how lucky they are to have all that wrapped up in a marriage.”Peter Hapak for TIME
Eric LaBonté, 42, film and television set designer & Russell Hart, 31, hair salon owner Together for 7 years, legal domestic partners, engaged since 2010, live in Los Angeles Eric (left): “My parents have been married for 45 years and I always knew that was something that I wanted. I want our children to say, ‘My daddies are married.’ We wanted to feel like a complete package.”Peter Hapak for TIME
Miguel Blanco, 34, freelance art director & Alexander Hammer, 33, film and video editor Together for 9 years, married in September 2011 in New York City, followed by a commitment ceremony in Florida, live in New York City Alexander (right): “We did domestic partnership. And nothing happened to me then. We went back to the same courthouse [to get married]. I was just thinking it was a piece of paper. I was surprised at how it was a completely different thing. We were going to do it on a Friday during lunch. I called my mom and she told my brother and his wife and Miguel told his family. The ones that could came. That made it very special. It took me a little while to say it: This is my husband.”Peter Hapak for TIME
Miguel Blanco, 34, freelance art director & Alexander Hammer, 33, film and video editor Together for 9 years, married in September 2011 in New York City, followed by a commitment ceremony in Florida, live in New York City Miguel (right): “When we had our commitment ceremony, I have to say I was overwhelmed by how incredible the experience was. As a young gay man coming out, like many others, I struggled with my family's lack of understanding. Having our families and loved ones there, supporting us and being so incandescently happy for us, was truly remarkable. For my family specifically, it really set it in stone for them that this is the person that I love and want to spend my life with.”Peter Hapak for TIME

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