The Supreme Court’s ruling in Obergefell v. Hodges, striking down gay marriage bans in every state, already has sparked a backlash in Kentucky. At least two county clerks now refuse to issue any marriage licenses because, they argue, issuing licenses to same-sex couples would violate their religious beliefs.*
Under KRS 402, a civil marriage in Kentucky requires a license in order to be valid, and that license “shall” be issued by a county clerk. Effectively, this law makes county clerks the gatekeepers of legal marriage in Kentucky. In order to get married, a right the Supreme Court has declared to be fundamental to different-sex and same-sex couples alike, you have to go through a county clerk.
The resistance of some clerks to the Supreme Court’s ruling has led Gov. Steve Beshear to issue an ultimatum: Issue licenses or resign. But because county clerks are elected officials, he can’t fire them. They can be impeached by the legislature or voted out of office, but the governor has no power to kick them out himself. That’s not to say the executive branch is totally powerless, however. It is a crime in Kentucky for a public servant to intentionally refrain from performing a duty imposed upon him or her by the law.
Likely sensing the criminal implications of the clerks’ refusal to issue licenses, two Republican members of the Kentucky General Assembly have pre-filed bills for the 2016 legislative session. Representative Stan Lee filed BR 101, which would amend three provisions of state law to exempt state officials with religious objections to same-sex marriage “from any requirement” to issue or record licenses for such marriages. Representative Addia Wuchner filed a similar bill that exempts officials only from solemnizing same-sex marriages (something they can but are not actually obligated to do under existing law).
Neither proposal, nor any of the media coverage surrounding them, explains exactly who will issue marriage licenses if these bills are passed and officials are exempted from their duties. After all, same-sex couples will still have a constitutional right to civil marriage, and Kentucky law will still require marriages to be licensed, so couples will have to get them from somewhere.
But more troublesome than the logistical problems these bills create is the idea that state or county officials can even have religious objections at all. It’s important to understand that public officials like county clerks are government actors. While they’re at work, they’re not acting as private individuals. They’re acting as the government. When they stand behind that counter and issue licenses, or enforce the law in any way, they effectively cease to be individuals and instead become the government.
“The government” is people. It requires public officials to act in order for it to function. And those public officials swear an oath to uphold the constitutions of Kentucky and the United States (the latter trumps the former). In exchange for the power, prestige and compensation of public office, they agree to enforce the law and perform their duties regardless of their personal religious views. It’s critical that they do so, because neither Kentucky nor the United States is a theocracy.
When people invoke their “religious freedom,” they invoke the First Amendment of the U.S. Constitution. It guarantees the free exercise of personal religious belief free of unnecessary government intrusion. It keeps the government out of churches and away from the hearts of the faithful. And yes, it also protects clergy members from performing marriages for people they dislike.
People, acting as private individuals, are free to believe whatever they want and engage in religious activity to the extent that it does not harm others. The government can only interfere if it has a “compelling” reason to do so and does so in as limited a way as possible.
But the First Amendment doesn’t just protect individual religious exercise. It also restricts government action in another way. It prohibits the establishment of a state religion. It keeps people, acting as government officials, from harnessing the vast power of the state to impose their religious beliefs on others. It ensures the equal protection of the law, so that people don’t have to fear that they will be denied their civil rights just because they don’t share the particular religious or moral beliefs of public officials such as county clerks.
The legislation proposed by Representatives Lee and Wuchner would stand the First Amendment on its head. It would grant the religious freedom to the government, when the point of our Bill of Rights is to protect the religious freedom of individuals from the government. It would create a theocracy.
That might not sound so bad if you share the religious views of the clerks now refusing to issue marriage licenses. But what if you didn’t? What if a Muslim clerk began denying licenses to all Christian couples because it violated his or her personal religious beliefs? Or what if a Mormon city official refused to issue a beer license to a Catholic-owned restaurant? Would that be OK? That’s the kind of arbitrary government discrimination the proposed legislation could inspire. Why limit it to same-sex couples? Why not allow government officials to deny the rights of whomever they personally disapprove?
The effective operation of government in a diverse, democratic society requires public officials to enforce the law equally. If they cannot do that, then they cannot fulfill their oaths and should not be government officials. We’re all entitled to religious freedom, but we’re also entitled to marriage licenses. We’re not entitled to hold public office. And we’re not entitled to use the power of public office to impose our personal beliefs on others.
*Disclosure: I represented the Kentucky same-sex couples in Obergefell v. Hodges and currently represent couples suing to obtain marriage licenses in Rowan County, Ky.