Law & the Courts

Accommodate Conscientious Objectors to Same-Sex Marriage

(Justin Skinner/Dreamstime)

Kim Davis is out of jail, but she never should have been there to begin with.

In late June, the U.S. Supreme Court required all states to recognize same-sex marriage, putting Mrs. Davis, head clerk of Rowan County, Ky., in a difficult position. In Kentucky, marriage licenses bear the name and invoke the authority of the head county clerk, making Mrs. Davis, in her view, a participant in a union to which she objects on religious principle. One day after the Court’s ruling, she stopped issuing marriage licenses entirely. A lawsuit followed, charging her with violating the law as interpreted under the Supreme Court’s ruling. A federal court directed her to issue all licenses, notwithstanding her objections. When she refused, U.S. District Judge David Bunning held her in contempt of court, and, rejecting several less spectacular alternatives, ordered her to jail. The Supreme Court rejected her appeal.

The sequence of events that led to Mrs. Davis’s imprisonment was predictable and entirely avoidable. The Supreme Court’s decision to assume to itself the ability to redefine marriage circumvented the legislative process by which accommodations for conscientious objections could have been developed. By redefining the responsibilities of public officials such as Mrs. Davis without offering protections of conscience, the Court foreordained clashes such as this.

States can and should find ways to accommodate public officials with religious objections to facilitating same-sex marriages. The United States has a long history of accommodating conscientious objectors, among them public officials. The coercive binary on offer from Ms. Davis’s critics — that she issue marriage licenses to same-sex couples or resign — is a false choice.

#share#Some states have already shown how a state can simultaneously give same-sex couples the benefits the Supreme Court has conferred on them and accommodate public officials who object to participating in that right. In North Carolina, officials — magistrates responsible for performing weddings, or registers of deeds responsible for issuing licenses to couples — who notify a superior of a conscience-based objection can recuse themselves in the case of same-sex marriages, and the state guarantees that another official will fulfill their responsibility. Hawaii has avoided problems by setting up an online system for issuing marriage licenses.

Such solutions are available to all states, including Kentucky. Similarly, Kentucky could simply amend its marriage licenses so that they no longer bear the name of the clerk from the issuing county. To accommodate the Supreme Court’s marriage edict, Kentucky has amended licenses to read “Party 1” and “Party 2” instead of “Bride” and “Groom.” Why not accommodate Mrs. Davis and others like her?

#related#Yet Kentucky governor Steve Beshear has shown little interest in such solutions. In June, when a clerk in Casey County refused to issue marriage licenses to same-sex couples, the governor demanded that clerks either dispense licenses or resign, and he refused to call a special session of the state legislature to resolve the issue. He has not budged on either position during this latest battle, suggesting that Kentucky lawmakers will not have an opportunity to resolve this issue until the next legislative session begins in January.

Neither Kentucky legislators nor those of any other state should be duped by Governor Beshear’s false choice. There is a simple solution available to secure both the judicially imposed right of same-sex couples to wed and the right of conscience of public officials. Common sense and a willingness to compromise can safeguard both the orderly administration of law and religious freedom.

The Editors — The Editors comprise the senior editorial staff of the National Review magazine and website.

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