Written by Don Byrd
[UPDATE 9/8: Kim Davis has been released from prison. Judge Bunning lifted the contempt order because deputy clerks in her office are issuing marriage licenses. He ordered her not to interfere with the continued issuance of marriage licenses.]
The collision in Rowan County, Kentucky, between religious beliefs on one hand and the right to marry on the other has been especially painful to watch, and particularly destructive of the lives involved. Couples suffered the indignity of being denied their constitutionally protected right to marry and were treated as second-class citizens by government officials. A county clerk has been confined to jail, a punishing restriction even the plaintiffs did not seek, for her refusal to perform job duties that offend her religious conscience. Individuals on both sides have been subject to public jeers and scorn.
All of this can and should be avoided in the future. State marriage regulations need not empower a single individual with the keys to access this right for an entire county. I highly recommend the blog post of Professor Robin Fretwell Wilson, who explains how Utah successfully avoided this dilemma.
Utah outsourced the solemnization function to any willing celebrant in the community, avoiding the need to decide whether someone like Kim Davis must resign or be fired as result of her religious beliefs. In essence, this religious liberty bypass creates a mechanism that is a win-win for everyone. Notice what does not happen when we bypass needless collisions: gay couples never wait longer, step into another line, or know any individual employee’s views. And individual dissenters are not unnecessarily fired.
The painful outcome in Kentucky may spark states to revisit the process by which marriage licenses are issued. The model in Utah demonstrates that a system can be devised that more nimbly addresses religious liberty interests while offering no barrier whatsoever to full, equal and immediate access to civil rights assured by the Constitution.
Religious liberty does not mean that religious objectors can defy a court order with impunity. That is particularly true when the objector is a government official sworn to uphold the law. But if we need not put officials to such a test of conscience that jeopardizes the rights of others, then why would we?
I agree with Professor Wilson: this “collision is wholly unnecessary.”
