In the wake of the controversy surrounding currently-jailed Kentucky clerk Kim Davis, some smarter, more honest conservatives have realized this may be a disaster for them.
Longtime intellectual crusader for religious conservatives, Rod Dreher, admits at The American Conservative that, after this saga, "A huge number of secular and/or liberal people in this country will be far less disposed to listen to anybody talk about religious liberty, and will be more willing to regard all religious liberty claims as Kim Davis-like special pleading." And he bemoans, "Kim Davis is a bad martyr for the cause of religious liberty, and we conservative Christians will come to regret her stance."
But then there's Ryan T. Anderson of the Heritage Foundation, given space to write an an op-ed in The New York Times in defense of Davis, headlined, "We Don't Need Kim Davis to Be in Jail." Like many defenders, at National Review, Breitbart, TownHall,com, The Christian Post and all across the Internet, he twists himself into a pretzel, distorting the facts. Anderson is always slick. But reading his op-ed carefully it becomes clear how he disingenuously and absurdly implies there is some sort of compromise on something that is simply about civil rights for gay and lesbian Americans. It betrays that his side realizes they're losing the battle over popular opinion on this and is getting more desperate.
Anderson writes that Kim Davis didn't need to go to jail if only we'd made "accommodations" for state employees like her in the way that he says North Carolina did earlier this year by passing a law shielding those employees. And he holds that problematic law up as a model.
Senate bill 2, vetoed by the Republican North Carolina governor, Pat McCrory, who was overridden by the legislature, became law in June. It allows some government officials to opt-out of same sex marriages. It's a blatant violation of church and state separation, allowing state employees to abdicate their jobs. The governor was right to veto it.
But Anderson distorts and obscures what the law states and is in fact refusing to acknowledge that Kim Davis could have done -- and could now do -- exactly what the North Carolina employees are able to do under their law, while he ignores what the employees in North Carolina are still mandated to do and which Davis won't do. Davis is demanding something far for extreme than what North Carolina has allowed with its already far-reaching law.
The North Carolina law states that "magistrates can be recused from performing all
lawful marriages and assistant and deputy registers of deeds can be recused from issuing all lawful marriage licenses, based upon a sincerely held religious objection." If they do choose to turn away any couple, however, these state employees are not allowed to issue any licenses or perform any marriages for a period of six months.
Furthermore, the law states that, "Each register of deeds would be required to ensure that all qualified applicants for marriage licenses are issued a license, and each chief district court judge would be required to ensure that marriages" are performed by another magistrate should one opt-out. (Over 30 magistrates have opted-out, and LGBT activists point out that it forces people to schedule their weddings around the hours another magistrate might be available, rather than simply being able to get married during any regular business hours.)
Let's put aside for a moment the issue of magistrates who, like, justices of the peace, actually officiate over a marriage once a license is obtained. In North Carolina the register of deeds office is equivalent to the county clerk's office in Kentucky, issuing the marriage licenses, as well as other kinds of licenses. The opt-out law in North Carolina states that the "assistant and deputy registers of deeds," similar to the deputy clerks in Kentucky, "can be recused from issuing all lawful marriage licenses," but the register of deeds, the equivalent of the county clerk -- Kim Davis -- would be "required to ensure that all qualified applicants for marriage licenses are issued a license."
Yet Kim Davis refused to do this. In North Carolina, the register of deeds must make sure another deputy register will issue a license if one of them has a religious objection. But Kim Davis refused to give any of her deputies any power to issue licenses. Indeed, a federal judge, David L. Bunning, offered Davis this option in return for letting her out of jail. She refused, so Judge Bunning kept her in jail and ordered the deputy clerks to issue the licenses.
Then Davis and her attorneys at the anti-gay Liberty Counsel claimed that the licenses being issued weren't valid because she hadn't given authority and her name was still on the licenses even if the deputies were signing them. And Ryan T. Anderson backs her on this, writing, "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."
But in North Carolina, no matter which deputy or assistant register of deeds signs a license, the name of the register of deeds appears on the license. See a sample here of a marriage license issued in Wake County, North Carolina, with the name of the register of deeds, Laura M. Riddick, even as the assistant register, P. Anne Redd, signed it.
It appears there is no full opt-out provision in North Carolina for the register of deeds himself or herself. This individual, equivalent to the county clerk in Kentucky, must "ensure" that all couples get a license, and his or her name will appear on those licenses no matter who signs it. Furthermore, though magistrates may opt-out of performing a marriage of a licensed couple, the chief district court judge must "ensure" that another magistrate is available to officiate. And it appears the chief district court judge cannot opt-out of this task.
In other words, in North Carolina certain government officials at certain levels cannot opt-out -- including at the level equivalent to the county clerk in Kentucky. Thus Kim Davis would not be happy with the North Carolina law -- as draconian as it is -- nor would have abided by a similar one in Kentucky, nor would many religious conservative be satisfied with anything like it in the long run. Anderson, in his desperation, holds up the North Carolina law as an example of "peaceful co-existence" but his goal and Kim Davis's goal, really, is to deny others of rights based on their religious beliefs, and, in the case of marriage equality, to inhibit it as much as they can.
That's clear by Anderson preposterously blaming the Supreme Court, which he claimed "redefined marriage for the nation," for causing this problem by stepping in rather than leaving the issue to the Kentucky legislature.
"Had same-sex marriage come to Kentucky through the Legislature, lawmakers could have simultaneously created religious liberty protections and reasonable accommodations for civil servants," he wrote. The statement is ridiculous for a couple of reasons. First, as I stated, there are no "accommodations" that truly would suffice for the most zealous and vocal religious conservatives. But more importantly, there was no way that same-sex marriage was going to come to Kentucky through the conservative legislature, just as laws protecting racial minorities were not going to come through Southern legislatures. The Supreme Court had to step in and do exactly what it is supposed to do.
The Kim Davis story is not about marriage equality or religious freedom. It's about the rule of law. And few Americans see any compromise there.