Kim Davis Has No Right To Impose Her View of Marriage on Others: The Defiant Clerk's Defenders Dangerously Blur the Distinction Between Private Action and State Action

Jacob Sullum
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Posted: Sep 09, 2015 12:01 AM
Kim Davis Has No Right To Impose Her View of Marriage on Others: The Defiant Clerk's Defenders Dangerously Blur the Distinction Between Private Action and State Action
When the ACLU of Colorado likened a baker who won't supply cakes for gay weddings to a police officer who refuses to protect a church or synagogue, it blurred the distinction between private action and state action, which is vital to a free society. Conservatives who defend Kim Davis, the Kentucky county clerk who last week went to jail rather than issue marriage licenses to same-sex couples, are making the same mistake.

Mike Huckabee, a former Arkansas governor who is seeking the Republican presidential nomination, said a federal judge's decision to hold Davis in contempt of court amounted to "the criminalization of a Christian for believing in the traditional definition of marriage." He warned that pastors, photographers, caterers and florists who decline to participate in gay weddings could receive similar treatment.

"We must defend religious liberty and never surrender to judicial tyranny," Huckabee said. "This is a reckless, appalling, out-of-control decision that undermines the Constitution of the United States and our fundamental right to religious liberty."

Other Republican presidential contenders likewise framed Davis' refusal to comply with the Supreme Court decision overturning state bans on gay marriage as an exercise of the religious freedom protected by the First Amendment. "I think it's absurd to put someone in jail for exercising their religious liberty," said Kentucky Sen. Rand Paul.

Texas Sen. Ted Cruz was even more emphatic. "Today, judicial lawlessness crossed into judicial tyranny," Cruz said in a statement. "Today, for the first time ever, the government arrested a Christian woman for living according to her faith. This is wrong. This is not America."

As my Reason colleague Scott Shackford noted, Cruz seems to have forgotten about a long line of Christian women who were arrested for living according to their faith as they understood it, including abolitionists, integrationists, alcohol prohibitionists, peace activists and death penalty opponents. More to the point, Davis was not arrested for living according to her faith; she was arrested for trying to impose her faith on others.

The government, unlike private businesses, is constitutionally obligated to treat all citizens equally under the law. Last June, in Obergefell v. Hodges, the Supreme Court said that obligation means states must issue marriage licenses to couples without regard to their sexual orientation.

Many conservatives disagree with that decision. Huckabee even likens it to Dred Scott v. Sandford, the 1857 decision upholding slavery. Because Obergefell, whatever the merits of its legal reasoning, expands liberty rather than contracting it, that comparison strikes me as inapposite, to say the least. Refusing to recognize gay marriage is hardly a moral cause on par with ending slavery.

In any case, as a representative of her state's government, Davis is obligated to comply with the Supreme Court's interpretation of the 14th Amendment's equal protection guarantee, just as county clerks who objected to marriages between people of different races (even on religious grounds) were obligated to issue licenses for such marriages after the court concluded that bans on miscegenation violated that principle. If Davis cannot in good conscience issue marriage licenses to gay couples, the honorable thing for her to do would be to resign.

People cannot, in the name of religious liberty, insist on keeping a job when they are unwilling to perform the duties it entails. That goes for private as well as government employees. If Davis took a job that required her to photograph gay weddings or bake cakes for them, she would have no right to reject those tasks on religious grounds and expect to keep the job.

The situation would be different if Davis started her own bakery or photography business. In that case, she should be (and in Kentucky would be) free to turn away work related to gay weddings based on her religious objections to such unions.

The ACLU is wrong to argue that such a refusal is essentially the same as unequal treatment by the government. So is Mike Huckabee.

Jacob Sullum is a senior editor at Reason magazine. Follow him on Twitter: @jacobsullum. To find out more about Jacob Sullum and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate Web page at www.creators.com.

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