As Chief Justice Roberts and Justice Alito correctly predicted in their dissents, the Supreme Court’s decision in Obergefell v. Hodges has not, in fact, brought closure to questions regarding marriage in the United States. That case has instead opened up a Pandora’s box of new controversies as the newly-articulated right to same-sex marriage comes into conflict with the First Amendment right to free exercise of religion. Over the past few months, the case of Kentucky county clerk Kim Davis has thrown these issues into sharp relief. Davis, who refuses to have any gay marriages sanctioned under her name, began turning away gay and lesbian couples applying for marriage licenses shortly after the Obergefell decision. Soon after that, she and her deputy clerks refused to grant any licenses at all.
Both the Federal Government and the State of Kentucky have laws specifically designed to resolve objections such as Davis’s. The Federal Religious Freedom Restoration Act (RFRA), passed in 1993 under President Clinton, and the corresponding Kentucky statute passed in 2013 outline similar tests for religious objectors to any generally applicable law. In the first place, the religious belief asserted must be sincere (an assertion which, if made, courts are rarely in a position to question), and the freedom of religion must be substantially burdened by the law to which the person is objecting. If this prima facie case is made, the burden shifts to the government. The government can enforce the law over the religious objection only by showing two things: the law must serve a compelling government interest, and it must represent the least restrictive means of achieving that interest. This is, if the government could accomplish the law’s purpose just as well via another method that does not burden religious liberty, it must do so.
In Kim Davis’s case, sincerity of belief is clear. The burden on the exercise of her faith rests on the argument that her name must by law be affixed to any marriage licenses granted in the county, even those signed by a deputy clerk instead of by her personally. Thus, she would appear to grant legitimacy to unions condemned by her faith. Coercive pressure to make a statement with which one does not agree represents a real burden. Davis maintained her religious objection through numerous appeals and a contempt of court charge, which saw her briefly jailed in September. Judge Bunning, who sentenced her in the contempt of court case, said ominously that she would be released only when she agreed to issue marriage licenses.
This jail sentence was not only alarming to many religious groups, but was legally incorrect. The government had not shown, and to this day has not shown, that forcing Davis to issue licenses under her own name satisfied the least restrictive means test. Today, deputy clerks may issue marriage licenses to same-sex couples which do not include Davis’s name or any sign of personal approval on her part. The only burden placed upon Davis is an order not to interfere with her deputy clerks’ actions. This case does not represent a tremendous development of law in itself; the necessary accommodation was found relatively easily after sound RFRA analysis was applied.
The case is more significant in what it reveals about the post-Obergefell legal and social order. An enormous amount of vitriol was poured out on social media over this case. Many such arguments suggested not only disagreement with Davis’s substantive views about gay marriage, but a demand that she resign immediately rather than fighting for an accommodation. This line of thought suggests that anyone opposing same-sex unions has no place within government, a rather radical argument coming from those who generally embrace tolerance and diversity as virtues. The Religious Freedom Restoration Act articulates a very different idea. Under RFRA, if a person’s exercise of religion is being burdened, they have every right to defend their practice, and demand that the government meet a high standard before forcing any violation of conscience. That level of protection is vital if people of different moral and religious views are to live together, without trampling any one group’s rights of conscience. The alternative, which I hope we can avoid, is an illiberal order within which only those views in accord with the prevailing orthodoxy are tolerated.
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