Constitution Check: Is freedom of conscience a shield against public duty?

Lyle Denniston, the National Constitution Center's constitutional literacy adviser, looks at the Kim Davis case, and how reconciling the principles of faith and the performance of public duty has been an unending task of constitutional interpretation.

THE STATEMENT AT ISSUE:

“I never imagined a day like this would come, where I would be asked to violate a central teaching of Scripture and of Jesus Himself regarding marriage. To issue a marriage license which conflicts with God’s definition of marriage, with my name affixed to the certificate, would violate my conscience. It is not a light issue for me. It is a Heaven or Hell decision. For me it is a decision of obedience. I have no animosity toward anyone and harbor no ill will. To me this has never been a gay or lesbian issue. It is about marriage and God’s Word. It is a matter of religious liberty, which is protected under the First Amendment.”

 – Excerpt from a statement on September 1 by Kim Davis of Morehead, Ky., the elected clerk for Rowan County, explaining her decision to refuse to issue any marriage licenses, in order to avoid doing so for same-sex couples, whose marriages she opposes as a matter of her faith. 

For adhering to that policy, she now faces a contempt-of-court hearing in a federal court in Ashland, Ky.

WE CHECKED THE CONSTITUTION, AND…

When the new American nation was founded with the Constitution, those present at the creation had a variety of views about the relationship between affairs of state and affairs of religious faith.  But at least two views tended to be very widely held: that a person’s faith was a matter of personal conscience, free and unfettered by government, and that religion and government would each do better if operated in mostly separated spheres.  So far as those ideas could be put into the words of governance, they were declared mainly in the First Amendment.

It was not true then, and it is not true now, that a person may be compelled to give up the principles of their faith as a condition of holding public office.  Public duty was not reserved constitutionally for  non-believers.  But it also has never been true that the principles of faith would control how public duties were performed.  Reconciling the two has been the unending task of constitutional interpretation.

Public policy does, of course, have an impact on the practice of faith.   As a simple example, paying taxes may support the use of military force by the government, and that may offend pacifist notions that are founded in religious belief.

It was inevitable, then, that a Supreme Court decision that recognized constitutional equality for same-sex marriage (a ruling that, in modern times, seemed to move inevitably toward reality) would offend the religious perception that marriage was reserved for one man and one woman.   As the nation moves toward implementing same-sex marriage as an actual legal right, there is no more serious question for America than how that can be done without endangering religious freedom.

In Rowan County, Kentucky, Kim Davis began worrying about that question even before the Supreme Court in late June decided the case of Obergefell v. Hodges.   She is a follower of the Apostolic Christian faith, and as such believes that same-sex marriage is not marriage at all.

After praying over the question and thinking deeply about it, because her duties as the Rowan County clerk required her to be the one official in the county who would issue marriage licenses, Davis made a decision: she would issue no marriage licenses, to any couple.  Her deputies could not do so, either, because her name had to be on the forms, she decided.

Her intention, she has insisted, was not to defy the Supreme Court as a public official with a sworn duty to obey the Constitution, and it was not to deny marriage to anyone who was legally eligible.   Her aim, she has said repeatedly, was simply not to be a part of the process herself.

“This is the line drawn by Davis’ religious conscience,” her lawyers have said, “and it cannot be moved or re-drawn by a court.”

However, in July, the governor of her state told her, and other county clerks, that they had to issue marriage licenses to implement the Supreme Court decision, or resign if they could not do so as a matter of conscience.   She was sued, and she sued in turn, to have the courts resolve the issue, constitutionally.

The case known as Davis v. Miller moved rapidly through the lower courts and then on to the Supreme  Court.  Her lawyers told the Justices explicitly that she makes no claim that her religion would be violated if someone else issues a license to a same-sex couple, and that her faith would not be burdened if she were allowed to file an official form claiming an exemption from the duty to issue licenses for religious reasons.  (By contrast, religious groups that have opposed the birth-control mandate under the federal health care law have been unwilling to concede on either of those points.)

Bolstering her claim that she is explicitly not trying to prevent same-sex marriages, Davis has noted that county clerks in several neighboring counties are issuing licenses to such couples, and has contended that the availability of that alternative means only a slight inconvenience for same-sex couples, not a denial of their legal right.   It is an inconvenience, she noted, equally for opposite-sex couples as for same-sex couples, under her policy.

The Supreme Court took little time on Monday to deny her request for permission to continue her “no-licenses” policy while she continues her appeal challenging a federal judge’s order telling her to resume issuing such documents to all who are legally eligible.  The day after the Justices acted, she continued her policy, leading the lawyers for same-sex couples newly turned away by the clerk and her assistants to ask the judge, David L. Bunning, to hold her iin contempt and impose heavy fines until she obeys his order.  They did not ask that she be sent to jail.

At Thursday’s hearing on that motion, Davis has a chance to explain why she feels she is unable to obey the order.  Even as that hearing occurs, Davis is pressing on with her appeals; her trip to the Supreme Court this week was only a preliminary move, but her case may return there in the future..

She and her lawyers are clearly counting on two constitutional facts of life: no constitutional right is an absolute, and there can be more than one way to enforce such a right.  With marriage licenses so readily available outside of Rowan County, her legal arguments go, same-sex couples will not lose their legal opportunity.   There is no right, she has asserted, to get a marriage license in a specific spot within a state, when, as a practical matter, there are in Kentucky some 130 places where such a license is actually now available.

There is some constitutional support for her claim that she is not explicitly refusing licenses only to same-sex couples.   During the long campaign in which same-sex marriage was developing as a constitutional matter, gay and lesbian couples were singled out for denial of that opportunity, and that denial was explicitly mandated by state constitutions and laws.    That, of course, is why Davis chose to issue no marriage licenses – period.

But the constitutional weakness in her claim – and it could be decisive -- is that her faith is determining the scope of usually available services that her public office will perform.  Her own public statement on Tuesday left no doubt that she would try to remain in office and would not relent on her no-licenses policy.

The contempt hearing she now faces will not resolve the ultimate constitutional question, which comes down to this: When, if ever, does a matter of religious conscience trump the performance of duty that clearly goes with holding a public office?  Or, even more simply, what is the difference between a permissible accommodation of faith, and forbidden endorsement of religion?