Author: Cynthia Tucker
Just after Kentucky county clerk Kim Davis was released from jail, she appeared at a raucous rally to thank a throng of cheering supporters.
Her stance on same-sex marriage has attracted the high-profile attention of other ultraconservative political figures, including GOP presidential candidates Ted Cruz, who attended the rally, and Mike Huckabee, who organized it.
They seem to believe that Davis has a constitutional right to discriminate against other citizens and to violate the laws of the land. Defending her on CNN, Huckabee said, “We have the first example of the criminalization of a Christian for believing the traditional definition of marriage. It is very, very shocking, to say the least.”
Though he mentioned such luminary historical figures as Jefferson and Lincoln, Huckabee has completely misunderstood the First Amendment and its protections. Davis’ beliefs have not been criminalized; her actions have been. She has every constitutional right to oppose same-sex marriage, to attend a church that denies those marriages, to organize opposition to marriage equality.
But she has no constitutional right to hold the office of Rowan County Clerk and deny marriage licenses to same-sex couples. Succeeding her mother, who held the office for 37 years, Davis was elected just last year. Still, she has a very easy solution at hand: If her religious views are so rigid, she can resign her office. (A handful of clerks have done that rather than give licenses to same-sex couples.) As a private citizen, she may freely practice her brand of Biblical fundamentalism.
It’s important to get that distinction right.
After the U.S. Supreme Court ruled in June that the government cannot deny marriage to homosexual couples, county clerks around the country were ordered to issue licenses to all couples who wanted the legal bonds of matrimony. A few refused initially, but most came to their senses.
Davis, however, chose to defy the specific order of U.S. District Court Judge David Bunning, and she was jailed for six days for contempt. She was released only after deputies in her office started to issue marriage licenses to “all legally eligible couples,” as the judge put it. He further ordered Davis not to interfere
f she wants to continue as clerk, she should recognize the generous compromise that she’s been offered. She can continue her bluster and Biblical traditionalism on the speaking circuit if she chooses. But, as Rowan County Clerk, she represents the government. And the government may not discriminate. The First Amendment was adopted by the Founders to ensure that the government did not legitimize any particular set of religious beliefs over another.
Think of it this way: While marriage is often a religious ceremony, it is also a civil rite. Couples get married in city halls and before justices of the peace every day. Those ceremonies may not be offered to one group of citizens — heterosexuals — and withheld from another — homosexuals.
Churches, meanwhile, are free to follow their own theological traditions, which in this country are many and varied. There are churches that endorse, bless and perform same-sex marriages, while others are abhorred by the idea. That’s one example of the nation’s vibrant religious pluralism.
After the high court’s marriage ruling, conservative preachers around the country panicked, insisting that their beliefs were under attack, that they were being persecuted, that they would be ordered to perform marriage rites for homosexuals. Not gonna happen. For centuries, clerics have chosen to perform those ceremonies — baptisms, weddings, funerals — they believed appropriate. No law has ever challenged their decisions.
But the United States is a secular democracy, not a theocracy. We are committed to protecting religious liberty, but the nation cannot allow any group’s religious ideology to strip away another group’s human rights. Sometimes, those conflicting ideals require a delicate balance, as when Catholic hospitals are allowed to refuse to perform abortions — even when doing so jeopardizes a woman’s health.
But Davis’ intransigence requires no Solomonic decision making. She has no right to be Rowan County Clerk. If she won’t do the job, she needs to step aside.
(Cynthia Tucker won a Pulitzer Prize for commentary in 2007. She can be reached at firstname.lastname@example.org.)