This morning, Rowan County, Kentucky county clerk Kim Davis declined once again to issue wedding licenses on account of her ‘religious beliefs’. Her refusal stems from an assertion that issuing permits to those wishing for a same-sex marriage violates her beliefs. Under a Supreme Court ruling back in June, the restrictions on marriage were found to be an unconstitutional infringement on equal rights.
So why is Ms. Davis making her stand, and on what grounds? Well, she’s claiming a 1st amendment stance based on her religious convictions, which leads us to a problem that seems endemic across America, especially when it comes to religious matters – most Americans do not understand what the First Amendment does and does not protect.
Let’s start at the beginning. What does the First Amendment say? Well it says:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
It’s only the first bit we’re interested in, the “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”. Her position is that it allows for her to freely exercise her religion, as she made clear in this video this morning, again denying people the licenses they require from her office, as demonstrated in this short video clip captured this morning by Reporter Hillary Thorton of WKYT.
Davis came out of office briefly to speak to couple (part 1) pic.twitter.com/lzuHysWi0T
— Hillary Thornton (@HillaryWKYT) September 1, 2015
Man 1: Why are you not issuing marriage licenses today? Davis: Because.. I’m not. Man 2: Under whose authority are you not issuing licenses Davis: Under God’s authority.
In federal court back in July she also asserted this claim, with the Courier-Journal reporting “Davis later testified that she is still following the Constitution because it protects expression of religion, and she noted that the Kentucky Constitution limited marriage to one man and one woman when she was elected. But under cross-examination, she struggled to answer questions about who has the final say in interpreting the Constitution, saying “I’m not a lawyer.”
Is she correct?
No, she’s not. Not even close.
The major misunderstanding many Americans have is that thinking that the free-expression clause permits them to freely exercise their religion under little or no restrictions whatsoever. That is so far from the case, you have to wonder where they get this from.
What it means is that the government cannot make any law prohibiting the free exercise of religion by its citizens. That means they can’t say ‘Judaism is banned’, or ‘you can’t build an Islamic community center because we don’t like Islam’. It also means that Ms. Davis is free to be any type of ‘Christian’ she wants to be.
HOWEVER, there’s also that pesky preceding clause, “Congress shall make no law respecting an establishment of religion”. While that states ‘Congress’, it’s actually been ruled to apply to all government officials, at all levels. In effect it means that no government official can make a law or rule that provides (or attempts to provide) a certain advantage to one religion over another.
This is where Ms. Davis hits a snag.
As a county official, she is a Government official. As such, she is bound by the first clause while at work, and so her opposition to the issuance of licenses falls afoul of the first amendment. She is using her Government position to impose and enforce her religious views on other people. That’s not just a violation of the first clause, but also of the second as it restrictions the abilities of others to freely exercise their religious liberty, including atheism.
Because she knew that would be a problem, she had denied ALL marriage license applications for the last few weeks, while she appealed to federal courts for an overturning or exemption. Each time she’s been told she’s not going to prevail and that her case fails on the merits, and she’s continued, right up to the US Supreme Court, who last night refused to accept her case (since they’d just decided it a month or two ago).
As a state official (for the county of Rowan, KY) she is required and obliged to abide by the laws of both the State of Kentucky, and of the US. Where those rules conflict, those of the US win (Supremacy clause, Article 6, Clause 2 of the Constitution) and in a June ruling, the US Supreme Court ruled Marriage can be between any two humans of legal age no matter their gender. That trumps her Kentucky Constitution claim.
In addition, by claiming “God’s authority” as reason for actions taken in public office, she’s now violated the second clause; she has prevented the free exercise of religion by imposing her religious beliefs on others, via the position of her office.
Ms. Davis, you’re free to worship how and when you please in your personal life. However, as a government official, you no longer have that ability to intertwine your religious beliefs with your work duties. Doing so becomes an issue of preferential treatment of one religious belief over others, which establishes a ‘favored’ religion. As a result, there is now a motion to hold Ms. Davis in Contempt of Court.
That’s a no-no.
How to reconcile that then, because surely that conflicts with her ability to freely exercise her religion? Well, no it doesn’t. She’s not being compelled into the job. She can leave the job at any time she feels her personal religious beliefs come into conflict with the requirement she not impose them on others.
Instead of actually being the ‘religiously persecuted’ she is in fact the religious persecutor. She probably doesn’t realize it though, because in the US, ‘Christianity’ doesn’t see itself that way. Despite being roughly 70% nominally Christian, and specifically a secular state, there’s often a big firestorm about how the US is a ‘Christian Country’ (it’s NOT) and how Christians are being slighted in lots of different ways (despite them getting more breaks than any other religious group, and again, usually being the persecutors).
Some states (especially in the Bible belt) still try and justify religiously based laws. In 2008 Georgia Governor Sonny Purdue tried justifying continuing the ban on Sunday alcohol sales citing traffic safety; that allowing it would lead to a rise in crashes. The same arguments were made when the issue as raised again in 2011 by state senators. When a study was done on the claims though, it found no significant increase in 12 of the 13 states that did lift such bans. The 13th state, New Mexico, did see some increase, unsurprisingly that was the sole state cited by Purdue who claimed a paragraph later “Now, I have always been a data-driven decision maker, so let me share the numbers with you”, except he didn’t. He clutched onto any numbers he could to try and bolster a claim that was religious in nature. That’s now been rectified with a 2013 law that permitted alcohol sales following local referendums.
There’s a simple way to understand it that perhaps might get through to people.
- As a person, you can exercise religion in any form you want.
- If you are a government official, you cannot, while acting in your capacity as a government official, act or perform in any way based on your religious beliefs, and you may be required to act otherwise in accordance with those beliefs.
It’s the second that allows for the first. If you can’t handle the second, then you have no business acting as a government official, at any level, and should resign.
Davis has rejected that already, with the Courier-Journal reporting
…if Bunning orders her to issue licenses, she would deal with that when it comes but that resigning is not an option because it would only leave the matter to her deputies.
“If I resign, I solve nothing. It helps nobody,” she said.”
Except who’s to say the deputies have the same religious convictions, or are as poorly informed on the Constitution as others. She wants to be seen as some sort of religious martyr, when in reality she’s more of a zealot. Then again it wouldn’t be the first time that flip has happened, as most Americans still believe the Pilgrims came to America fleeing religious persecution and seeing freedom. The reality was they came seeking a place to establish a near totalitarian theocracy that would do the persecution and deny religious freedom.
When historical facts are ignored in place of cheerful lies, and when civics is so poorly taught that most American high-school graduates in Oklahoma couldn’t pass the basic citizenship test (only 3% did) but can run for public office, is it any wonder we get issues where people claim rights they don’t have, and seek to infringe on the rights of others because they feel they can? Such is the case of Ms. Davis, and it’s one America would be wise to wake up, and fix, as soon as possible.