Disturbingly incomplete reporting afflicts the drama of county clerk Kim Davis in Rowan County, Kentucky.
Davis rebelled after the U.S. Supreme Court struck down bans on same-sex marriages. She refuses to issue marriage licenses although that is part of her $80,000-a-year job.
Davis said issuing the licenses to same-sex couples would be complicit in something unGodly. She says her refusal is protected by the First-Amendment right to exercise her religion free of government compulsion.
Davis isn’t a loony. Throughout our history, Americans of all beliefs and none have refused to follow a law or binding Supreme Court decision, asserting their right to freely exercise their religion or irreligion. Some have won their cases. Others have not.
What’s missing from most news stories and commentaries I’ve read and heard is why the government believes it can limit Davis’ free exercise of religion.
Georgetown University constitutional law professor David Cole provides that context in The New York Review of Books when he tests her arguments against decades of U.S. Supreme Court decisions.
As Cole reads the precedents, U.S. District Judge David Bunning wisely rejected Davis’ First Amendment claim, ordered her to issue the licenses and jailed her for contempt when she disregarded his order.
Cole begins by noting how opponents of same-sex marriage shifted from law to religious freedom when the Supreme Court struck down bans on same-sex marriages.
Their case against equal protection for same-sex couples died in part because they “could not credibly point to anyone who was harmed by it,” Cole wrote, and “claims that ‘traditional marriage’ would suffer were, by contrast, abstract and wholly unsubstantiated.”
Now, state laws granting religious exemptions to foes of same-sex marriage are the new battleground. The issue will be clear: How do we balance the rights of same-sex couples to equal treatment with the free-exercise rights of religious objectors?
To Cole, the answer is clear: Government “violates no constitutionally protected religious liberty by imposing laws of general applicability — such as anti-discrimination mandates — on the religious and nonreligious alike.”
It’s going to be nasty. When foes of school desegregation and abortion lost in the Supreme Court, they turned to the First Amendment in search of religious exemptions. Same-sex marriage completes that unholy trinity in Americans’ partisan cultural wars.
To underline the weakness of Davis’ free exercise argument, Cole turns to Justice Antonin Scalia in a 1990 decision. Two Oregon men were fired for using hallucinogenic peyote in Native American rituals. The court majority upheld the Oregon law banning peyote.
Scalia wrote that being subjected to a general rule, neutrally applied to all, does not raise a valid claim under the First Amendment’s free exercise of religion clause, even if the rule burdens the exercise of one’s religion.
Scalia reasoned that to allow religious objectors to opt out of generally applicable laws would, quoting an 1878 Supreme Court precedent, “make the professed doctrines of religious belief superior to the law of the land, and in effect … permit every citizen to become a law unto himself.”
The court, Cole wrote, accordingly ruled that laws implicate the free exercise clause only if they specifically target or disfavor religion, not if they merely impose general obligations on all that some religiously scrupled individuals find burdensome.
Cole also cited the 1983 decision denying Bob Jones University’s federal tax exemption as a religious institution because it banned interracial dating among students.
There, the court said the government’s “compelling interest” in eradicating racial discrimination “outweigh[ed] whatever burden denial of tax benefits places on petitioners’ exercise of their religious beliefs.”
Anticipating Davis’ options, Cole concluded that “under these precedents, the Constitution plainly does not compel states to grant religious exemptions to laws requiring the equal treatment of same-sex marriages. Laws recognizing same-sex marriages impose a general obligation, do not single out any religion for disfavored treatment, and in any event further the state’s compelling interest in eradicating discrimination against gay men and lesbians.”
Cole continued, writing, “Justice Robert Jackson got the balance right when he stated, in 1944, that limits on religious freedom ‘begin to operate whenever [religious] activities begin to affect or collide with liberties of others or of the public.’ James Madison struck the same balance, noting that religion should be free of regulation only ‘where it does not trespass on private rights or the public peace.’ ”
“Many of the state laws specifically single out religious objections to same-sex marriage for favorable treatment may itself pose constitutional issues under the First Amendment’s clause prohibiting the establishment of religion,” Cole added.
“While states are permitted some leeway to accommodate religion, the establishment clause forbids states from favoring specific religions over others, or religion over nonreligion. And when states accommodate a religious believer by simply shifting burdens to third parties, such as when religiously motivated employers are permitted to deny benefits to same-sex spouses of their employees, the state impermissibly takes sides, favoring religion.
“… State laws granting exemptions for religious objectors to same-sex marriage both give preference to religious over other conscientious objections and shift burdens to same-sex couples. Such favoritism is not only not warranted by the free exercise clause, but may be prohibited by the establishment clause.”
If there is a positive glimmer in the Kim Davis fiasco, it’s the coverage of support she’s getting from GOP presidential aspirants. They’ve lined up behind her claim to the right to screen applicants for marriage licenses according to her religion. Ohio’s John Kasich is an honorable exception; it’s the law, obey it.
CONTACT BEN L. KAUFMAN: [email protected]