Charlie, I think you would be right if Rick Santorum had been arguing Columbine as a legal precedent. Under those circumstances, it would be correct to say the difference between official and unofficial action renders the Columbine heroism inapposite to our consideration of Kim Davis. But I understood Rick to be making an observation about the trajectory of the culture. It’s not the comparison I’d have chosen, but I don’t think it was beyond the pale for him to use these examples in contending that society’s respect for freedom of conscience has eroded in the last 16 years.

To make it a more apples-to-apples comparison, 16 years ago we were in the Clinton era when a liberal Democratic president felt compelled to sign the Defense of Marriage Act. That would be inconceivable today, when the only real mystery regarding the incumbent was how long he would continue posing as a same-sex marriage naysayer – a charade that was itself a reflection of the change in public perception over time.

I also think the assessment of a public official’s flouting of generally applicable laws may be more complex than you suggest – I say “may be” because you concede that “there is a case to be made for accommodating dissenters such as Davis where possible” … though it’s not clear whether you see it as a compelling case.

The law is one complicating factor. The Supreme Court has adopted a constitutional religious liberty test that tends in the direction of your argument: If a law is of general application and religion neutral (i.e., applies to everyone and is neither hostile nor favorable toward religion, or toward a religion), then everyone is expected to follow it – and, naturally, this is especially true as to officials whose duty is to enforce the law. Congress, however, responding to a public outcry, determined that this jurisprudence insufficiently protected religious liberty. Thus it added a statutory safeguard: to justify action that burdens a person’s exercise of religion, the government must show both that it has a compelling interest in taking the action and that the action is the “least restrictive means” of furthering that interest.

The statute (the Religious Freedom Restoration Act) contains no exception that would allow the government to place burdens on government officials that it would not be allowed to impose on other persons. So if, for example, there were other officials in Ms. Davis’s office who were empowered to issue marriage licenses to same-sex couples, then it would be easy to accommodate those couples without requiring Ms. Davis to betray her convictions. (Note that I am assuming for purposes of this discussion that the government has a compelling interest in regulating marriage. The point is not without controversy, though the legal ramifications of marriage are so bound up with the religious and social ones that I don’t see any real prospect of government’s getting out of the marriage business.)

Accommodating both sides of the equation would be best for social harmony. Ms. Davis should not be able to frustrate anyone’s legal rights if she is the only official empowered to issue marriage licenses; but neither should a same-sex couple go out of their way to seek a license specifically from her as a means of demanding that she submit to their worldview at the expense of her convictions. If there are other officials empowered, available, and willing to issue the license, the same-sex couple should be satisfied.

Finally, I rely in part on my own experience as a government official. Despite taking an oath to uphold the laws, prosecutors are not required to try, for example, death penalty cases if they have a conscientious objection to capital punishment. I know of no office that deviates from that sensible practice and have never known it to be a problem. Prosecutors’ offices are big enough that a government lawyer who is willing to handle the capital case can always be found. Plus, death penalty cases make up such an infinitesimal portion of the work of a prosecutor’s office that it’s not like a lawyer who begs off such a case cannot be a perfectly serviceable prosecutor. (It would be different if the lawyer had religious qualms about, say, imprisonment. Then it would be fair to say the lawyer should find another line of work since his personal beliefs, however sincerely held, make it impractical for him to function as a prosecutor in any meaningful way.)

There is common sense that must be brought to bear on these matters. If, for example, all death penalty indictments have to be approved by the attorney general, and you had an AG who was morally opposed to the death penalty, then the AG would be expected to either (a) set aside the moral objection, or (b) designate a subordinate who had no reservations about enforcing the law to handle such decisions. Otherwise, the law cannot be faithfully executed, and the public has the right to have its laws carried out.

A similar situation arises with death penalty juries: If a prospective juror testifies to having a moral objection to capital punishment, that juror is disqualified. Arguably, this means the defendant is denied a jury of his peers. In every community, there is bound to be a not insignificant group of people morally opposed to the death penalty in all circumstances, yet this group is deemed disqualified from jury service in capital cases. But again, capital punishment is on the books in most jurisdictions and the public has a right to have it enforced in appropriate cases. The only way that can happen is by seating only jurors capable of voting for or against death based on the evidence presented rather than on a moral objection.

To sum up, I think it was reasonable for Rick Santorum to use the examples he chose to make a point about the diminishment over time of respect for religious liberty, even though I agree that the two examples by which he marked time are importantly different. Moreover, it is not only possible but, I believe, also preferable and legally required to accommodate Kim Davis’s religious convictions. Doing so does not violate the legal rights of same-sex couples, who have only the right to a license issued by a qualified official, not to the endorsement of every public official. Making such accommodations is not a threat to the rule of law; it is the faithful application of law that gives religious liberty a wide berth.