Relating to same sex marriage cases, people are confusing the right to marry with the right to have that marriage recognized by others. This is not limited to the layperson but is even perpetrated by judges. The distinction is necessary in order to determine the proper way of handling marriage licenses after the Supreme Court ruling in Obergefell v. Hodges.

Right vs Privilege

First, recall that a right can be considered that which is voluntarily maintained by a group of people, in the absence of others, and which is predicated on preserving the rights of every subset of the group. As always, this results in the core right to inaction. It does also logically conclude that two people have the right to form a marriage contract and issue vows based on their beliefs.

It does not however mean that such a marriage must be recognized by others. Indeed, since rights are only that which is maintained “in the absence of others” then it cannot be a right. It is instead a privilege. Now, it is a privilege that all states, as of now, grants to its citizens. The Supreme Court case of Obergefell v. Hodges decided whether or not only providing that privilege to heterosexual couples was in violation of the 14th amendment. It was. One class of citizen cannot be given a privilege, by a law in a given municipality, that another class of citizens is given.

The problem is, the wording of Chief Justice Kenendy’s opinion makes things very confusing and often confuses rights and privileges, while also looking far beyond anything in the constitution in order to support his argument. So what does that mean for individual cases where marriage licenses are being issued?

Kim Davis

That brings us to the case of Kim Davis, a Kentucky county clerk who refuses to issue marriage licenses on the grounds of religious objection. First, is she in violation of federal law or acting against the constitution?

Let’s consider what the 14th amendment prevents. The 14th amendment prevents the government from discriminating against various groups of citizens. What does it mean to discriminate?

Discrimination is the “unequal treatment of persons, for a reason which has nothing to do with legal rights or ability.” (Source)

While her objection is based on her religion, she has stopped issuing all marriage licenses, not just licenses for same sex couples. Her treatment of all individuals has been the same. Because of this, she is not discriminating. This precludes her from being in violation of the 14th amendment.

Burwell v. Hobby Lobby Stores, Inc

As an added level of support, let’s suppose that she were in violation of federal law, as it stands. Does she still have a position on which to fall back? The answer is again yes. In Burwell v. Hobby Lobby Stores, Inc, the Supreme Court upheld the Religious Freedom Restoration Act. This act requires three conditions which must be met in order for a person to be found in violation of a federal law, when there is a question of religious opposition. The first requirement is that the religious opposition be sincere. If this is met then the law is valid if it “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”

As I will address later, the belief is indeed sincere and there are other less restrictive means. Therefore, even in this case, she would be protected. She is however in violation of Kentucky statutes which tasks the county clerk with providing marriage licenses and the RFRA itself does not protect actions taken by the states, so is there an argument there?

Religious Protection

As already mentioned, people have a right to marry and a privilege to have that marriage recognized if it is recognized for another group of people. But does that mean that the government has the authority to force any specific person to involve themselves with the process? No. Even by the Lemon test, a law cannot inhibit religious practice. Forcing a person whose religion opposes homosexual behavior to involve himself or herself in the process of a same sex marriage would absolutely be an example of inhibiting religious practice. Furthermore, the Kentucky Bill of Rights (KBOR), in section 5, states that “no human authority shall, in any case whatever, control or interfere with the rights of conscience.” Even the court, in its initial injunction, admitted that Davis had a “a sincere religious objection to same-sex marriage.”

Essentially, the current law is forcing her to act in violation of her religion. Yet, the constitution protects her religious views and her “right of conscience.” Now, if she had applied for the position and accepted the position, during a time when same sex marriage licenses were already being issued, then there would be an implicit agreement that her religion was not being violated. But that is not the case here, as the job changed after the fact.

Recourse

Because of this, her course of action was the only one that she could have taken, under current state law, which would protect her religion while also preventing a violation of the 14th amendment. So what are the options? Well, there are a few different possibilities. One possibility is for the state to stop issuing marriage licenses all together. The other is to change the process so that no specific individual would be forced, against their religion, to provide a marriage license to a same sex couple.

One rather absurd argument that I have heard is that she is protected from issuing same sex marriage licenses under the 1st amendment and KBOR, but she should still be fired because she is not issuing marriage licenses. This is absurd. constitutions take priority over laws. If she issued all marriage licenses, this would result in a violation of the 1st amendment and the KBOR. If she only issued marriage licenses to heterosexual couples, she would be in violation of the 14th amendment. Only by not issuing any marriage licenses is she upholding both the 1st amendment, the KBOR, and the 14th amendment. Therefore the provision that must go is the law which demands her to issue marriage licenses in the first place.

Accommodation vs Enforcement of Religion

Let us end our discussion with the distinction between accommodating a person’s religion, which the government must do, and enforcement of a religion, which is something that the government cannot do.

Accommodation of religion means an attempt to prevent a violation of one’s religion. This can be in private matters or in matters of law. Only if it is impractical to do so would the courts rule against the person making the complaint. ~~This is even addressed in the Civil Rights Act of 1964 under Title VII.~~ Accommodation, in this case, would mean finding a way for Davis, and other clerks who have concerns, to do the remainder of their job, which clearly they are capable of doing, while still ensuring that marriage licenses to same sex couples be provided, assuming that marriage licenses are provided at all.

However, even if the accommodation is declared to be unreasonable by usual considerations, it may still need to be utilized in this case, due to the KBOR’s far stricter wording on the issue. As mentioned previously, the wording says “in any case whatever.”

Deputy Clerks

One option to ensure accommodation while also ensuring that Davis does not impress her religious beliefs onto anyone else would be to allow the deputy clerks to provide the licenses. As of now, the deputy clerks have said that they are willing to issue marriage licenses, but are “afraid of Davis.” Now, based on the current information that I have, it is unclear as to whether or not Davis has specifically forbid the clerks from using licenses, or if they have even asked whether or not they would be allowed to do so.

If she prevents the deputy clerks from doing so, she would have to provide a solid argument as to why this would somehow impinge on her religion, and that would be a very difficult task. (Update: she did prevent the deputy clerk from issuing licenses, saying that the deputy had no such authority to do so without her approval.) Her name would no longer be on the topic, and therefore she would no longer have a concern about an apparent endorsement of the marriage license. The only argument she could give is that they are still working under her authority. It is true that when someone, who is working under your authority, does something, it is perceived as being acceptable to you. In that case, the law could be altered to provide deputy clerks with full authority, separate from the clerk, in matters which violate the clerk’s religion but are otherwise the job of the clerk.

Outcome

Unfortunately while the constitutionality seems to be rather clear, the Supreme Court and lower courts, have been ruling in such a way that pushes marriage licenses towards being an artificial right as opposed to a privilege. As such, it may be the case that the courts will force Davis to issue licenses or remove her from her position. Unfortunately doing so would set further precedent for the suppression of individual religious freedom on behalf of appeasing others.

Rebuttals

Paid to Do Nothing

One rebuttal is that a person, even if protected by the statutes listed earlier in this article, cannot perform his or her job, then he or she cannot remain on the payroll. That’s true. A person cannot be paid to do nothing. However, that is a straw man in this case because Kim Davis’ job is not to issue same sex marriage licenses. It’s to act as county clerk and handle vital records. She is, or at least was before being held in contempt, performing the remainder of her duties.

“Let’s Make up a Religion”

Another common straw man is to demand that, if the argument is valid, a person could simply create a any religion that he or she wanted, including a religion that demanded that everyone else should give the person all of their money.

This is incorrect on many levels. First, in order to qualify for protection based on one’s religion, a person must show to the court that such a religion is held. Burden of proof rests with the person claiming religious objection. Second, if two provisions of the constitution were to come into conflict, the Supreme Court would have final say on the matter and most likely rule in such a way as to limit the harm done.

The 14th amendment protects a person’s property. Therefore a religion, even if truly held by a person, which demands that everyone give up their property to someone else, would come into conflict with the 14th amendment. It is reasonable to demand that taking everyone else’s property would result in a greater harm than not being able to take everyone else’s money. Therefore no such religious argument would hold up in court.

Res Judicata

This argument suggests that the courts have already ruled on the matter involving Davis and that they do not have to do so again. Indeed, even the Supreme Court seems to view that it has already ruled on this matter. Perhaps that’s just because the court is burned out after its last case involving same sex marriage, but this is a new question. The old question was whether or not the states can refuse to issue same sex marriage licenses to homosexual couples if they provide them for heterosexual couples. The answer was no. This question is whether or not the state can force any specific official to involve themselves with these marriages under threat of jail or discharge. Indeed, asking this question is a direct logical consequence of the decision in Obergefell v. Hodges and it is a concern that many legal scholars who opposed the decision had.

Title VII Exempts Elected Officials

Held. While elected officials are still protected by the constitution, they are not specifically protected under the Civil Rights Act of 1964 Title VII.

Extension to Private Business

There is one issue that I want to address when it comes to the 14th amendment. The 14th amendment extends various the protection of privileges and immunities to the state level. This does not mean that such privileges and immunities must automatically be observed in private life or private business. Unfortunately the Supreme Court has, for a considerable time, interpreted these provisions to private businesses.

Updates

As of September 9th, 2015 the judge reversed his order and released Davis from jail. He also allowed her back to work, so long as she did not interfere with the ability of the deputies to sign marriage licenses. The judge did not order her to sign the licenses. This actually establishes precedent on the matter. It says that a clerk can indeed refuse to sign marriage licenses if it violates his or her religion.

Right to Marry vs Privilege of Recognition – The Implications for a Kentucky Clerk