….it seems to me that Davis has a much stronger claim under state law for a much more limited exemption. Davis’s objection, it appears (see pp. 40, 133, and 139 of her stay application and attachments), is not to issuing same-sex marriage licenses as such. Rather, she objects to issuing such licenses with her name on them, because she believes (rightly or wrongly) that having her name on them is an endorsement of same-sex marriage. Indeed, she says that she would be content with
Modifying the prescribed Kentucky marriage license form to remove the multiple references to Davis’ name, and thus to remove the personal nature of the authorization that Davis must provide on the current form.
Now this would be a cheap accommodation that, it seems to me, a state could quite easily provide. It’s true that state law requires the County Clerk’s name on the marriage license and the marriage certificate. But the point of RFRAs, such as the Kentucky RFRA, is precisely to provide religious objectors with exemptions even from such generally applicable laws, so long as the exemptions don’t necessarily and materially undermine a compelling government interest.
And allowing all marriage licenses and certificates ”” for opposite-sex marriages or same-sex ones ”” to include a deputy clerk’s name, or just the notation “Rowan County Clerk,” wouldn’t jeopardize any compelling government interest. To be sure, it would have to be clear that this modification is legally authorized, and doesn’t make the license and certificate invalid. But a court that grants Davis’s RFRA exemption request could easily issue an order that makes this clear.
I think as an elected official she should either issue the licenses, get someone else in her office to do it or resign. But here’s the thing I keep fretting over–where do we draw the line? At some point government will go too far and order things that are clearly unconscionable. There is precedent–for instance the racial purity laws in Nazi Germany. Remember the defense of the SS–they were following the law, and merely doing their duty under the direction their lawful superiors. While signing a state “marriage” license doesn’t rise to that level, the Nazi, Stalinist and Japanese experiences teach us, if nothing else, that there is a very thin veneer of civilization that covers up some very dark evil in us.
There is also a fine line between equal protection under the law and a constitutionally protected class. Think minority contracts, affirmative action, etc. There are already state laws which apply to discrimination based on sexual orientation and these go far beyond the mere issuing of a license. It is a new day in America.
There is also a fine line between equal protection under the law and a constitutionally protected class. Think minority contracts, affirmative action, etc. There are already state laws which apply to discrimination based on sexual orientation and these go far beyond the mere issuing of a license. It is a new day in America.