The Legal Theory Behind Kim Davis and Same Sex Marriage

BY KAILA PARTIN—“The Court now holds that same-sex couples may exercise the fundamental right to marry.”

The June 26, 2015 Supreme Court decision in Obergefell v. Hodges signaled a day of celebration for many people across the United States and throughout the world.  Social media was flooded with worldwide support and excitement. Twitter reported the hashtag #LoveWins had over 6 million tweets in the first four hours after the Court announced its decision. Within days, the question of how this decision would be reconciled with the freedom of religion came to the forefront as Kim Davis made headlines for refusing to issue marriage licenses.

Kim Davis is an elected Rowan County clerk in Kentucky, and one of her responsibilities is to issue marriage licenses. She is also an Apostolic Christian and she believes that issuing same sex marriage licenses is a “heaven or hell decision.”  After the Obergefell decision, Kim Davis refused to issue any marriage licenses because her religion would not allow her condone same sex marriage and she did not want her name affixed to same sex marriage licenses. By July 2, 2015, eight plaintiffs, two same sex couples and two opposite sex couples, filed a complaint against Kim Davis for refusing to issue marriage licenses to anyone, regardless of their sexual orientation.

Miller v. Davis highlights the conflict between two competing interests: the fundamental right to marry and the fundamental right to religious freedom.

Justice Kennedy’s majority opinion in Obergefell foreshadowed this conflict between freedom of religion and the fundamental right to marry:

“Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection…”

On August 12, 2015, the District Court of Kentucky Northern Division at Ashland addressed the question of how to reconcile the two fundamental interests at play:

“[t]he tension between these constitutional concerns can be resolved by answering one simple question: Does the Free Exercise Clause likely excuse Kim Davis from issuing marriage licenses because she has a religious objection to same-sex marriage? For reasons stated herein, the Court answers this question in the negative.”

First, the district court recognized that Kim Davis was acting in official capacity as a state actor when she refused to issue marriage licenses.  Next, because the state action of refusing to issue any marriage licenses significantly interferes with the fundamental right to marry, the court subjected the state action to strict scrutiny. Under strict scrutiny, Kim Davis had to show that her actions were narrowly tailored to achieve a compelling state interest.

The district court held that there was no compelling state interest present in this case, making Kim Davis’ actions unconstitutional. Davis suggested that the state has an interest in protecting her religious freedom because she is a state employee. The court recognized this concern; however, the court also recognized many other state interests that “run contrary to Davis’ proffered state interest.”  For example, the state has an interest in avoiding Establishment Clause violations, so the state must not make a law that promotes a single religion. The state also has an interest in “upholding the rule of law” that requires respect for the United States Supreme Court decisions.

But what about the free speech argument that the Supreme Court alluded to in Obergefell? The district court in Miller v. Davis rejected the idea that free speech could protect Kim Davis because the speech in question is government speech that does not require Davis to approve of same sex marriage. The court also recognized that elected officials “must accept certain limitations on his or her freedom” when they enter government service.

As of August 12, 2015, Kim Davis was enjoined from refusing to award marriage licenses. Today, marriage licenses in Rowan County, Kentucky are being authorized; however, it is unclear whether Kim Davis will continue to fight for what she believes is her religious right to refuse to issue same sex marriages on religious grounds.

For others, Miller v. Davis provides clear guidance as to what actions government employees may take based on religious grounds. Government employees with religious beliefs now wear two hats: their government hat and their religious hat. At work they act as state agents and must wear their government hats, which do not allow them to condemn same sex marriage on religious grounds.  Outside of work, they may wear their religious hats and are free to condemn same sex marriage. For individuals whose religion precludes them from wearing both hats, working in a government position will likely put them in precarious situations that require them to ignore their personal religious beliefs. Does requiring government employees to ignore their deeply held religious beliefs put the United States on a dangerous path toward ignoring fundamental Constitutional principles? Or, should the United States rejoice because the court found the right balance between religion and marriage equality? Only time will tell.

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