County clerk Kim Davis during a rally on the steps of the Kentucky State Capitol. (Photo: Timothy D. Easley/AP)
A federal judge ordered Kim Davis — the defiant Kentucky county clerk who has cited her Christian faith in refusing to issue marriage licenses to gay couples — to jail Thursday afternoon for refusing to carry out the duties of her position.
Davis has become a symbol of religiously motivated disobedience after the landmark Supreme Court decision legalizing gay marriage in June — she’s said she is acting under “God’s authority” when she repeatedly turns gay couples away. But Davis is very much alone in her defiance. The refusal of other clerks to marry same-sex couples largely melted away as it became obvious their legal claims would not hold up in federal court. Only 13 counties in Alabama and two counties in Kentucky are refusing marriage licenses to gay couples, according to the gay rights group Freedom to Marry. Despite many loud proclamations of defiance after the ruling, the vast majority of counties have accepted the law.
One little-known and controversial practice might be behind some of this unexpected compliance. In Utah, North Carolina, Texas and other states, local governments are shifting responsibilities so that employees who object to gay marriage do not have to be involved with wedding licenses at all. In this scenario, the objectors’ co-workers or other government officials rotate to handle the task, allowing clerks who object to fade into the background and not participate.
In fact, this might be what happens in Davis’s case: Late Thursday afternoon, five of her deputy clerks offered to begin issuing marriage licensing, a move that could save her from jail.
They won’t be the only clerks covering for their bosses. Hood County Clerk Katie Lang denied a marriage license to a same-sex couple in Texas several times after the Supreme Court ruling. But after the pair filed a federal lawsuit, their licenses were quickly granted. Lang released a statement saying she would “personally refrain” from issuing them, but that other people in her office would do so instead.
These kinds of personal exemptions have flourished elsewhere, as well.
In June, North Carolina legislators overrode the Republican governor’s veto to establish that county magistrates who object to same-sex marriage can opt out of wedding licensing entirely and designate someone else to perform the function. (This is what Kim Davis wants to happen in Kentucky, according to a statement from her lawyer. She’d like another Rowan County agency to take over marriage licensing entirely.)
So far, 32 out of 672 magistrates in North Carolina have recused themselves from wedding licensing and have designated substitutes.
Although the ACLU and many gay rights groups strongly object to these exemptions, they’re hard to challenge legally unless a magistrate does not find an adequate substitute, and gay couples find it hard to marry in a certain county.
North Carolina ACLU Legal Director Chris Brook says they are concerned a magistrate could recuse himself at the very moment a same-sex couple walked in, thus denying the couple a marriage license without giving them an alternative.
But as long as same-sex couples are able to access marriage the same way opposite-sex couples are, a legal challenge would be tough.
“I think the attempt to create exemptions is going to bump up against the [the gay marriage decision] if it’s not made available on roughly the same terms that civil marriage is made to opposite sex couples,” says Robert Tuttle, a professor at George Washington University Law School.
Then there’s the so-called Utah Compromise, which carves out personal exemptions for government officials while extending housing and hiring protections to LGBT people. In Utah, county clerk employees who don’t want to marry gay people can privately notify the government of that and then appoint someone else in the community to handle all marriage licenses.
“There are good reasons to try to allow people who have been in these jobs for a long time to be able to keep their jobs,” Wilson says. “That’s a really noble thing to do in our culture, especially at a time of deep division.”
But a group of Columbia University law professors argue in a recent memo that these kinds of exemptions create “conscience creep,” in which government employees can refuse to provide more and more services that violate their beliefs. And what happens when no one wants to provide the service? “The exemption proposals would make the efficacy of same-sex couples’ constitutional right to marry contingent upon their being able to find a public official who has no objection to their having such a right,” they write.
Nonetheless, states may choose to copy North Carolina’s law when their legislatures reconvene in September and January.
Legal precedent says government officials have a right, like anyone else, to uphold their religious beliefs. But they do not have a right to their government job and paycheck. If their beliefs conflict with their duty to uphold federal law, they can lose their job.
“If you are going to work for the government, you have to respect the constitutional rights of its citizens,” Ted Olson, the lawyer who argued against California’s same-sex marriage ban in Supreme Court, told Yahoo News in an email.
One clerk in Tennessee recently chose to opt out of government service over this issue. In Decatur County, longtime clerk Gwen Pope and many who worked for her resigned on July 5 over objections to same-sex marriage. “I honestly believe God will take care of us,” Pope told the Jackson Sun.