Protesters for and against marriage equality continue to be heard in Rowan County, Kentucky as county clerk Kim Davis returned to work. Released from jail after her arrest for refusing to issue marriage licenses to same-sex couples, Ms. Davis was freed on the condition that she would not interfere with her office issuing such licenses. On her return, she has chosen to not interfere when her colleagues issue licenses to same sex couples, provided they are not authorized in her name. Though the state's highest officials maintain that such licenses are valid, others, including Ms. Davis, maintain that they are not. This situation -- which is not yet clearly resolved -- and others like it have permeated the news in the wake of the Supreme Court's decision constitutionally guaranteeing marriage equality. And the current evolving standoff suggests that such conflicts will continue to unfold.
These cases, known as conscientious refusals, involve questions of deep conviction, personal faith and freedom of religion. They arise when two rights come into conflict: freedom of religion and equal rights for all people. Here, the conflict involves the right of same-sex couples to receive marriage licenses, in accordance with the Supreme Court's recent marriage equality decision, and an employees' right to exercise religious freedom by refusing to issue that license. Both of these rights are hard to exercise simultaneously, as Kim Davis' situation shows. Though we need to seek a solution that balances both rights, sometimes that is easier said than done.
In a variety of industries, employers have successfully balanced such competing rights by providing religious accommodations for their employees while ensuring that services were otherwise provided. However, when such conscientious refusals involve marriage licenses, providing accommodations does not always work. Kim Davis' situation starkly demonstrates the point. Her refusal, which is not based on an objection to issuing marriage licenses, is rooted in her religious beliefs and the identity of the people seeking the license. The result is a refusal to treat same-sex couples equally.
Today, there are 19 states plus the District of Columbia that have laws prohibiting discrimination on the basis of sexual orientation in public accommodations. In those jurisdictions, refusing to issue marriage licenses to same-sex couples would likely constitute illegal discrimination (in the same way that a person cannot claim they are religiously entitled to discriminate on the basis of race).
In contrast, in the 31 states lacking such anti-discrimination laws (and absent a federal law making it illegal to discriminate on the basis of sexual orientation) there is less clarity. Clerks and judges charged with issuing marriage licenses are employed by the government and are responsible for upholding the U.S. Constitution and the interests of their employer. After the Supreme Court's ruling, these interests now explicitly include the right of same-sex couples to marry. This responsibility, and the fact that these employees are paid through taxpayer money, suggests that they may not have the right to refuse to issue marriage licenses to same-sex couples -- even when, as with Davis, the refusal is based on sincerely held religious beliefs. The U.S. Supreme Court seemed to agree when it denied Davis's plea for relief, as do the Kentucky courts, but what will happen in those states as these cases continue to emerge is not entirely clear.
Nor is it clear whether the accommodation provided for Davis's beliefs will truly satisfy her. Allowing other clerks to issue the license while Davis was in the office could be an accommodation. But is that right, when Ms. Davis demands not to have her name on the licenses and then concludes that they are not legally issued? Further, this type of an accommodation institutionalizes partial discrimination toward same-sex couples. On its face, another option would be to stop issuing marriage licenses altogether, an option that Davis exercised prior to her incarceration; but this means that the county clerk's office is no longer performing one of its essential functions.
It seems that the effort to accommodate here may fail. In that event, the only option left for Davis will be to do what some clerks have already opted to do and what political leaders of all persuasions are saying: resign because she can no longer in good conscience do her job in accordance with the law. In the U.S., she is entitled to believe as she wishes but this does not entitle her to take a job tasked with facilitating the law -- and then violate it at will.