In his powerful dissent from Obergefell v. Hodges, the case in which the Supreme Court redefined marriage to include same-sex marriage, Chief Justice John Roberts wrote that “many good and decent people oppose same-sex marriage as a tenet of their faith” and that if they “exercise their religion in ways that may be seen to conflict with the new right,” then “hard questions” may arise.
That has happened in Rowan County, Kentucky, where the elected county clerk is Kim Davis, whose job includes issuing marriage licenses to all legally eligible couples. In late June, when Obergefell was handed down, Davis refused to issue marriage licenses to same-sex couples. She did so citing religious reasons. Several couples unable to secure licenses in Rowan County sued, charging that Davis had violated their constitutional right to marriage. She lost. Defying court orders to comply with the decision, she was found in contempt and jailed for five days, during which time five of her six deputies issued licenses on terms consistent with Obergefell. That satisfied the judge in the case that the clerk’s office was fulfilling its legal obligations, and Davis was released.
That, however, is hardly the end of the story. The judge warned Davis that she must not “interfere in any way” with the licensing work of her deputies and implied that were she to do so, she could land in jail again. Of course, were she to fail to “interfere,” she could be violating her conscience, or so it would seem. Asked by reporters what she would do, her lawyer said, “Kim Davis cannot and will not violate her conscience.”
Davis now has filed in federal court a complaint against Governor Steve Beshear seeking an accommodation of her religious belief under relevant federal and state laws. In accord with Kentucky law predating Obergefell, the form couples fill out to obtain a license includes an “authorization statement of the county clerk issuing the license.” Also, the form in two places requires the clerk’s approval. Davis believes that in authorizing a same-sex marriage she would be “endorsing the proposed union and calling something ‘marriage’ that is not marriage,” in violation of her religious beliefs. This is her core complaint.
It bears noting that Davis is not opposing marriage licenses for same-sex couples. What she seeks is accommodation of her religious objection to issuing same-sex marriage licenses that have her imprimatur. She would be satisfied if the marriage license form were edited to delete the multiple references to her name and office. That, she says, would eliminate the “personal nature of the authorization.” She has proposed other accommodations to achieve the same end, among them relocating the marriage licensing function online or in a state office, such as the Office of Vital Statistics, and deputizing a neighboring county clerk (or some other official) to issue licenses in Rowan County. None of the accommodations Davis proposes seems likely to undermine an important governmental interest.
Davis’s better option may lie not in federal but state court. Kentucky has a Religious Freedom Restoration Act (RFRA). Like other state RFRAs, Kentucky’s is designed to accommodate where possible the exercise of religion. Eugene Volokh, the First Amendment authority (and founder of the Volokh Conspiracy blog), says that if Davis were to sue in state court, “seeking a declaration that she can issue licenses and certificates without her name, as a Kentucky RFRA-based exemption from [the state’s] statutory requirements for what must go on her license, I think she’d have a good case.”
It may take an RFRA case in state court to get the Kentucky governor’s attention. When Obergefell was decided, Governor Beshear revised state law to reflect the redefinition of marriage accomplished by that decision. But he showed no interest in also accommodating religious belief. Note that the legislature had to override Beshear’s veto of RFRA to secure its enactment.
Beshear has refused to call a legislative session where an appropriate accommodation could be passed—and almost certainly would be, given the conservative leanings of the legislature. Beshear says it would cost $300,000 to hold such a session. He would rather the legislature address the issue when it reconvenes in January. The calendar shows four months before January arrives. Is Kentucky going to be the site of more jailings of Kim Davis during that time? You would think that prospect would move the governor to do the right thing and issue an executive order that adequately protects religious liberty.
