There have been a couple of stories in the news lately that directly impact the ongoing discussion of religious liberty in this country, and I thought I’d offer an opinion or two.
The first is the case of Kim Davis, elected County Clerk of Rowan County, KY, who is (as of this writing) in jail for contempt of court after refusing a judge’s order to begin issuing marriage licenses to same-sex couples. She appealed all the way to the US Supreme Court, who declined to hear her case.
In Ms. Davis’ case, she can’t simply be fired or reassigned, because she was elected to the office of County Clerk (a position that pays $80,000 a year, which in that area of the country is quite a sum). To take office, however, she did swear an oath to fulfill her duties, as is also required by Kentucky state law (interestingly, not all states have such laws!).
Setting aside the specific issue of same-sex marriage, the simple fact of the matter is that, while Ms. Davis absolutely has a right under the First Amendment to the Constitution to practice her religion, the Rowan County Clerk has an obligation, under that very same First Amendment, not to “establish religion” through public policy.
In short, when Ms. Davis swore that oath, she placed those two elements of the First Amendment – the right of the individual to freedom of religion vs. the obligation of the government to not enforce a particular religious point of view – in conflict. On her free time, outside of her job responsibilities, Ms. Davis still enjoys all of the protections of that First Amendment liberty. However, as soon as she steps into that office, and is acting as an agent of the government, she must abide by the government’s obligation not to enforce a particular religion.
If she can’t, or won’t, do that, she must resign as being unable to fulfill her duties. Period. The oath she swore requires it. And that would be just as true if her Muslim religious sensibilities prevented her from issuing marriage licenses that are legal under Kentucky law, as it does because of her Christian faith.
Note that this is a very, very different thing than a private citizen or business doing the same thing. In that case, there is no obligation not to play religious favorites (in fact, quite the opposite, as the First Amendment’s freedom of religion clause remains in effect), and I am firmly of the belief that a sincerely held religious belief should allow a private business owner to refuse to undertake whatever custom he or she wishes to refuse. That’s an argument for another day, however, and one that has not yet been tested to completion in the courts.
The other case, which is actually very similar to the first, is the Villa Rica (Georgia) high school football coach who instigated a mass baptism before a football practice, which included 18 players and one assistant coach. The Freedom from Religion Foundation found out about it when someone posted the video on YouTube, crowing about “how God is still in our schools!”, and sent a C&D letter to the school, asking that the coach be punished and the practice stopped.
Now, there are some essential differences between the two cases:
- The baptism was held before practice, apparently
- The baptism was said to be voluntary
- The county clerk, and the football coach, are both agents of the government