Kim Davis, a county clerk in Kentucky, has refused to issue marriage licenses to all couples—gay or straight—since the Supreme Court’s Obergefell decision in June. As a Christian, Davis objects to gay marriage.
Six couples have brought suits against her, arguing she must fulfill her duties as an elected official despite her religious convictions. Two weeks ago a federal judge ordered her to issue the licenses, and last week an appellate court upheld that decision, saying:
It cannot be defensibly argued that the holder of the Rowan County Clerk’s office, apart from who personally occupies that office, may decline to act in conformity with the United States Constitution as interpreted by a dispositive holding of the United States Supreme Court.
In other words, when Davis goes to the office, she should check her identity at the door.
Kentucky Governor Steve Beshear agrees. After the Obergefell decision he sent an e-mail to all county clerks, refusing to allow for any religious accommodation and telling them to comply with the decision.
Employer Practices and Employee Beliefs
Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees on the basis of religion. It applies to employers with 15 or more employees, including federal, state, and local governments.
When the state government is the employer, here’s how Title VII works in conjunction with Kentucky’s Religious Freedom Restoration Act (RFRA). Let’s say an employer’s practice requires an employee to violate her sincerely held religious beliefs. What happens? Some say she should just quit and find employment elsewhere, but it’s not that simple. After all, in a pluralistic society, entire professions can’t be off-limits to people of particular faiths. That’s religious discrimination, and that’s what the law protects against.
Instead, the law weighs the employer’s interests against the employee’s interests. The state employer cannot “substantially burden a person’s freedom of religion” unless it can show it’s using “the least restrictive means” to further “a compelling government interest.” If the employer can do that by a showing of “clear and convincing evidence,” then it’s up to the employee to decide whether she’ll stay, and violate her conscience, or quit.
This Isn’t About Marriage
Is there a compromise solution in Kentucky—one that would allow same-sex couples to receive marriage licenses consistent with Obergefell without violating Davis’s religious beliefs? Yes, but some same-sex couples want nothing to do with it. They would rather force their neighbor to violate her conscience than drive 22 minutes to another county clerk’s office.
On Thursday, James Yates and William Smith, Jr. went to the Rowan County Courthouse to get a marriage license. It was their third attempt. Given the appellate court’s decision, they felt confident they’d find success. But they were wrong. The deputy clerk told them the district court’s “stay” on issuing marriage licenses doesn’t expire until today, August 31.
“It’s just making us want to press harder,” Yates told the Associate Press. “She can’t get away with this because it will open the door for so many other rights to be just thrown away”—apparently failing to note the irony of him asking Davis to throw away hers.
To boot, Yates and Smith have other options. In Kentucky there are 120 counties—and 117 of them have clerks with no objections to affirming gay marriage. In fact, three of them are within 30 minutes of the one in Rowan—Bath (22 minutes), Carter (26 minutes), and Morgan (28 minutes).
They—and their supporters—have political options, too. Davis is an elected official whose oversight includes marriage licenses as well as legal records, voter rolls, elections, taxes, and more. If Rowan County citizens want to replace her, they can vote for someone else in the next election cycle. That’s how politics works.
But Yates and Smith don’t want to compromise, and they don’t want to wait. They’d rather use government to force her to violate her conscience than find a way to live peacefully in a pluralistic society.
This story isn’t about two men who want to get married, but about two men who want to force their neighbor to violate her constitutionally protected religious beliefs.
Religious Liberty Creates the Space
As Christians, we fight for religious liberty because it creates the space for us to glorify God in our vocations. We believe that, when we leave our homes and our churches, we don’t shed our identities. Our work in the marketplace matters to us because the gospel isn’t a private truth, but a public one. As The Gospel Coalition’s Theological Vision of Ministry reads:
The good news of the Bible is not only individual forgiveness, but the renewal of the whole creation. . . . Therefore Christians glorify God not only through the ministry of the Word, but also through their vocations of agriculture, art, business, government, scholarship—all for God’s glory and the furtherance of the public good.
In a pluralistic society, we must pursue a modus vivendi—that is, a way of living that allows conflicting parties to coexist peacefully. After all, we’re driven by a gospel that tells us that God so loved the world he sent his only Son—not to condemn it, but to save it (John 3:16–17). This good news compels us not only to pursue a “convictional civility” in the public square, but also to seek “the welfare of the city” where God has called us (Jer. 29:7).
Subverting the Way of the World
How we treat others, though, cannot be pegged to how they treat us. When Davis denied a marriage license to two of her friends, a lesbian couple, she explained: “You know, I love you guys, but I can’t be party to that.” They sued, and protesters called for her resignation. Yet she remained steadfast. “That’s their right to assemble peacefully and to, you know, voice their opinion, just as it’s my right to voice my opinion,” she said.
As Jesus told his followers in Galilee, “Love your enemies and pray for those who persecute you, so that you may be sons of your Father who is in heaven” (Matt. 5:43). Those of us who are recipients of his grace should be the first to embrace this teaching.
After all, while we were still his enemies, Christ died for us (Rom. 5:10; Col. 1:21).