On Thursday, Kentucky Governor Steve Beshear ordered Casey County Clerk Casey Davis to issue marriage licenses to all eligible couples including same-sex couples or resign from office. Davis, as we’ve learned in the last few days, believes that the state shouldn’t force him to put his name on a marriage license that violates his conscience. File Davis’ objection under the category “the things that are not Caesar’s.”
Beshear’s ultimatum is alarming on a number of levels. Its certainly inconsistent with how he handled Attorney General Conway’s refusal to defend Kentucky’s Constitution and marriage law in federal court last year. (He was mum). Nor is it in accord with Kentucky’s religious freedom statute. (The Religious Freedom Restoration Act (RFRA) passed in 2013). And it is out of step with the Commonwealth’s longstanding constitutional protections of conscience and religious freedom. (Perhaps he hasn’t read it lately).
Kentuckians consider conscience sacrosanct. So much in fact that it is inviolably protected in our Bill of Rights, Section Five: “No human authority shall, in any case whatever, control or interfere with the rights of conscience.” It’s strong language, and it would appear to apply to the governor.
This intra government conflict could have been easily avoided if the governor would have followed existing law regarding religious freedom claims. Kentucky’s 2013 RFRA law says the “government shall not substantially burden a person's freedom of religion.” If there is another way to carry out a compelling government interest, it must be done in the “least restrictive means to further that interest.” Even though Gov. Beshear disliked the law enough to veto it, the overwhelming override by state House and Senate members put it on the books and now he’s bound to follow it.
Davis proposed to the governor in a private meeting the idea of an online marriage registry which would indeed further the state government’s interest (abiding by the Supreme Court’s new rules on marriage) in the least restrictive means (not infringing on sincerely held religious beliefs). It’s a good idea. In agreement are 57 Kentucky County Court Clerks who signed a petition calling for a special session to craft new legislation to protect their rights of conscience. The governor promptly refused the plea, essentially calling it a waste of money.
Davis’ religious belief is so strong he is willing to go to jail for it. While militant secularists seek to banish conservative man/woman marriage advocates to the purgatory of public marginalization, they haven’t yet called for the outright jailing of conscientious objectors. Kentucky Fairness Campaign director Chris Hartman believes the issue will “play out in the courts,” and that he is “not of the mind that county clerks should be immediately hauled off to jail.”
Immediately? As if jail might be a viable option at some point in the future should county clerks fail to conform.
How have we gotten to the point where jail is used in the same conversation over marriage and religious convictions? Tolerance this is not.
A powerful political tide is sweeping away the legal understanding of what marriage is and what religious freedom means. In its place, a new understanding is being ushered in, albeit by very few and its mostly coming from the top-down.
This radical moral recalibration, possible because of a redefinition of once firmly fixed and widely understood categories, doesn’t set well with religious conservatives like Davis who operate their personal and public lives out of a worldview that compels them to live consistently by their convictions. Earlier this week, several hundred people rallied in Casey County around Davis and religious freedom.
Religious freedom is quite simply the ability to pursue truth and live according to ones convictions about ultimate questions. Such freedom is a pillar to a free and open society and it should be accommodated and offered the space to flourish.
Davis reminds us that there are some things that are not Caesar’s. Gov. Beshear, the son of a preacher, knows this. In that light, may he uphold Davis’ religious freedom and rights of conscience with the same urgency he's demonstrated in carrying out the U.S. Supreme Court’s marriage mandate.