On Saturday, I posted an explanation of Kim Davis’s legal situation by Eugene Volokh, wherein he says Davis was asking for “a cheap accommodation that...a state could quite easily provide.”
This point is still being missed by many, so it’s worth another clarification. Ryan Anderson explains at the New York Times:
Because each marriage license issued by the clerk’s office bore her name and title, Ms. Davis concluded that her religious beliefs meant she could not have her office issue licenses to same-sex couples. So she had the office stop issuing them entirely.
Ms. Davis felt she had to follow her conscience. And whether or not we share her Christian faith, and its particular positions about issuing civil marriage licenses, is beside the point.
That, after all, is what religious freedom and religious accommodations are all about: creating the space for citizens to fulfill their duties, as they understand them, to God—regardless of what the rest of us think. Of course, religious freedom and accommodations aren’t absolute. Federal anti-discrimination law requires a reasonable accommodation of religious belief where it does not place undue hardships on the employer. And Kentucky, like many other states, provides additional protection against unnecessary government burdens on religion.
So it was incumbent upon the government to try to work out a solution.
Here’s the key point:
Ms. Davis wasn’t trying to prevent same-sex couples from getting marriage licenses at all; she just didn’t want her name or title on the paperwork. That’s why she wouldn’t allow her deputies to issue the licenses.
Kentucky accommodates conscience for other licenses. Why not marriage? Yet Gov. Steven L. Beshear issued a mandate telling all county clerks to issue licenses to same-sex couples without exception. When asked to call a special session of the Legislature to try to work out a reasonable accommodation, he said it could wait until January.
That’s why Ms. Davis ended up in court. But it shouldn’t have gotten to the point where this county clerk was being hailed as either a hero or a villain.
It’s worth reading Anderson’s op-ed in full. Once again, Davis is not objecting to issuing marriage licenses, only to having her name on them. This means the proposed accommodation would not have inconvenienced people seeking to get marriage licenses—certainly less so than the actions (or rather, inaction) of this Dallas County judge who refused to perform any marriages back in 2012:
Parker said she refers them to other judges because of the state’s marriage inequality, informing them that that is why she will not marry them.
“I use it as my opportunity to give them a lesson about marriage inequality in this state because I feel like I have to tell them why I’m turning them away,” Parker said. “So I usually will offer them something along the lines of ‘I’m sorry. I don’t perform marriage ceremonies because we are in a state that does not have marriage equality, and until it does, I am not going to partially apply the law to one group of people that doesn’t apply to another group of people.’ And it’s kind of oxymoronic for me to perform ceremonies that can’t be performed for me, so I’m not going to do it.”
Accommodations like this one can be, and are, made by states for public officials. Regardless of what Kim Davis should have done after her situation passed the point of being ordered by a judge to issue licenses, it’s looking more and more to me like the governor escalated things beyond what was necessary.