Kim Davis released from prison, but may be destined to return

A federal judge ruled today that Kim Davis, the Kentucky clerk who has refused to issue marriage licenses to same-sex couples, may leave jail. However, her release is conditioned on not interfering with the deputies who have been issuing licenses to such couples.

Davis’ lawyer says she will not adhere to this condition:

Nothing has been resolved. She told the court Thursday that she can’t allow licenses to go out under her name and her authority that authorize a marriage that collides with her conscience and religious conviction, and Kim is not changed on that position.

The judge has accommodated Davis’ religious beliefs to some extent. She gets to avoid performing her full duties as clerk without being punished.

Davis has sought further accommodation under which gay couples could get marriage licenses without her involvement, direct or indirect. She suggests creating an “opt-out exemption” in the marriage license process, deputizing a neighboring county clerk, taking Davis’ name off of marriage licenses, and having the state distribute the licenses.

I don’t know enough about the marriage licensing process in Kentucky to have an opinion on the reasonableness of these measures. It strikes me, though, that this isn’t an ordinary religious accommodation case because Davis’ religious beliefs seem to be causing her to throw up barriers to the enjoyment of rights the Supreme Court has said are owed under the Constitution.

In a typical religious accommodation case, an employee might ask to swap a shift with a co-worker to avoid working on her Sabbath. The employee isn’t trying to thwart or slow down the employer’s operation on moral or any other ground. On the contrary, she’s trying to work out a way to keep things rolling.

The accommodation issues that have arisen thus far from gay marriage also seem different from Davis’ case. A photographer who won’t photograph a gay wedding typically isn’t trying to make it more difficult to have the wedding professionally photographed (much less block the marriage). He just wants to skip the proceeding.

Davis appears to be asking for more. Gay couples will have to be married in another jurisdiction. Alternatively, the legal procedure for marriage license issuance will have to be changed.

It has been suggested that if Davis’ conscience doesn’t permit her to perform her job or let others under her perform it, then she should resign. Davis responds that “if I left, resigned or chose to retire, I would have no voice for God’s word.” I take this to mean that resigning would violate her faith because she would be paving the way for gays to be married in her county, against God’s word.

If that’s her argument, then her goal isn’t just to avoid being associated with gay marriages — a desire that should be accommodated within reason — but rather to prevent them from occurring in her county. I respect Davis for being faithful to her religious beliefs at a considerable cost. But given state of the law on gay marriage, this desire cannot be accommodated.

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