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Hollman HeadshotBy General Counsel K. Hollyn Hollman

For good or bad, a Kentucky clerk became the public face, complete with “Eye of the Tiger” soundtrack, for religious freedom claims relating to same-sex marriage. Following the Supreme Court’s marriage decision, the elected Clerk of Rowan County, Kentucky, refused to issue marriage licenses and prevented her deputies from doing so. That led to a variety of court filings and legal maneuvers, a brief stint in jail, a raucous rally celebrating her release, commentary from presidential candidates, and finally marriage licenses but still not a completely clear resolution. The story has received an exhausting amount of attention. What lessons can we take away from it?

Conscience-based refusals arise in a variety of settings.

Most of the religious objections to same-sex marriage have been very different from the highly publicized standoff in Kentucky. In all cases, sincere claims of religious objection should be heard respectfully. The context is critical to evaluate and respond to religious accommodation needs. Purchasing a wedding cake at a bakery, obtaining emergency contraception at a local pharmacy, or applying building codes uniformly are different scenarios where objections have arisen, and they carry different stakes. The right approach to resolving the conflict in a county clerk’s office is not necessarily the right approach to other conflicts, even though they are all rooted in sincere religious objections to government regulations.

Elected officials have special responsibilities to serve the public and enforce the law.

Elected officials take an oath to uphold the law and act on behalf of the citizens they serve. When government agents act in their official capacity, the law views them as extensions of the state, and rightly so. We should look with special scrutiny whenever an individual, acting on behalf of the government, acts in a way that the law prohibits the government from acting. Of course, officials are also individuals with the right to freedom of belief and conscience. When possible, the law should protect their right to act in accordance with those individual beliefs, especially when that conduct would not impede their governmental duties or imply an official endorsement of religion.

Solutions that accommodate religious objectors and protect the rights of others may require hard work and should be applauded.

The eventual resolution of the events in Rowan County — full and equal access to marriage rights for all residents, without the clerk’s participation —has largely resolved the controversy. One source of the conflict in Kentucky may have been the state’s marriage license procedures themselves. Other states have found ways to navigate this conflict.

In Utah, for example, the process of solemnizing a marriage has been “outsourced to any willing celebrant in the community,” according to law professor Robin Fretwell Wilson, “avoiding the need to decide whether someone like Kim Davis must resign or be fired … .” Revisiting the processes by which states issue marriage licenses would be an entirely appropriate response to this controversy.

There are limits to religious freedom.

In Kentucky, the clerk’s claim of religious freedom not to issue marriage licenses and to keep others from doing so interfered with a constitutionally protected right to marry. That presents a particularly difficult religious accommodation claim.
Davis has said that same-sex marriages are not valid in God’s eyes. Expression of that religious belief is protected. But her religious belief is an insufficient basis for her actions given her job. A marriage license from Kentucky, or any other state, certifies that the couple has met all of the state’s qualifications to be married. If a county clerk is required to issue licenses in violation of her conscience, it is not a signal that Due Process and Equal Protection rights outweigh Free Exercise rights. Instead, it is recognition that as a government agency, the clerk’s office is not reducible to the individual that holds the office. The office is an extension of the public, charged with upholding the rights of all.

Some advocates on both sides have framed disputes like Rowan County’s as a contest between First Amendment rights of religious freedom and Fourteenth Amendment rights of liberty. We should avoid the divisive call to pick sides among our constitutional liberties, and instead work together to correct widespread and fundamental misunderstandings about religious liberty that can help avoid such conflicts.

From the September/October 2015 Report from the Capital. Click here to read the next story.