What religious freedom isn’t
When Davis faced U.S. District Judge David Bunning on Thursday, crucial principles were at stake, but religious freedom wasn’t among them. Davis had defied Judge Bunning’s order to issue marriage licenses to same-sex couples. The way for Davis to stick to her convictions and show proper respect to the rule of law was to step down.
Instead, she chose to insult the legitimate authority of the federal court and claim the right to ignore the responsibilities with which the people of Rowan County entrusted her. She did this even after the judge offered her the opportunity to “purge” her contempt of court by allowing her deputies to sign same-sex marriage licenses in her place. She refused to do that, too.
Sunday, Davis’ lawyers appealed the contempt of court motion that sent her to jail.
Monday, Labor Day, Davis asked Kentucky Gov. Steve Beshear to immediately release her from jail. Davis’ attorney Horatio Mihet said in a statement: “We would like them to release her from jail and provide reasonable, sensible accommodation so she can do her job.
“That would be taking her name off of marriage licenses in Rowan County and allowing her deputies to issue the licenses.” Clearly, she reconsidered Judge Bunning’s original offer.
Gov. Beshear, for his part, has refused to insert himself, saying that the case is between Davis and the courts. Wise man.
It was entirely appropriate for Judge Bunning to apply the only punishment that might realistically compel Davis to comply with the law. The judge reasonably suspected that Davis would be able to weather fines with financial support from same-sex-marriage opponents. The judge’s action also may deter state officials elsewhere from joining Davis in lawlessness.
And what of religious liberty? In Davis’ case, it is an irrelevant excuse, not a plausible justification. Davis has every right to oppose same-sex marriage as a private citizen. If she were a member of the clergy, she would have every right to refuse to perform ceremonies for gay men and lesbians. She has every right to petition the Kentucky legislature to offer clerks such as herself some workaround, though she rejected Bunning’s, and legislators would have good reasons to say No if asked. But her religious convictions do not excuse her from having to apply the law as it stands in her official duties, a commitment she made when she took office.
You would expect that candidates for president, an office with substantially more power than that of Rowan County clerk, would understand this simple point. Many, however, seem not to. Sen. Rand Paul, R-Ky., said Thursday that it is “absurd to put someone in jail for exercising their religious liberties.” Sen. Ted Cruz, R-Texas, called on “every lover of liberty to stand with Kim Davis.” Former Arkansas governor Mike Huckabee, a Republican, was equally effusive.
Others showed greater wisdom. Sen. Lindsey Graham, R-S.C., hit the nail on the head: “I support traditional marriage, but she’s accepted a job where she has to apply the law to everyone. And that’s her choice,” he said.
That choice remains in Davis’ hands.