Here’s what didn’t happen: Nobody suggested that dropping him from OCS was a violation of the First Amendment’s guarantee of “the free exercise” of religion. He did not say, “I think that in recognition of my sincere religious opposition to war, you should let me stay in the Corps and get my pilot’s wings. I will do the job, except for one thing: I won’t drop bombs or shoot guns.”
I thought of that incident on Thursday, when I read Miller v. Davis. In that decision, released Wednesday, District Judge David L. Bunning ordered Kim Davis, Clerk of Rowan County, Kentucky, to issue state marriage licenses to all qualified couples who seek them.
After the Supreme Court decided in June that states must allow same-sex couples to marry, Davis had announced that she and her staff of six deputies would no longer issue marriage licenses to anyone. Barring any couples for getting licenses in Rowan County, Davis claimed, would protect her religious rights without discriminating against anyone. Judge Bunning brushed that argument aside and issued an injunction requiring her to issue licenses. On Friday, she defied the order.
“Kim Davis did not sign up as a clerk to issue same-sex marriage licenses,” said a statement from her public-interest lawyers, Liberty Counsel. “At a minimum, her religious convictions should be accommodated.”
Is it possible to agree on what religious freedom is not? It’s not a right to wear a Marine uniform but refuse to fight. It’s not a right to be a county clerk and decide which citizens you will serve and which you won’t. Religious “accommodation” doesn’t mean what Liberty Counsel thinks it means. If a person can perform the duties of a job with some adjustment for religious belief, that’s an accommodation. If they’re not willing to do the job, they have to leave. That’s not just a requirement of law; honor requires it as well.
Government in particular has an obligation to dismiss any employee who claims a right to discriminate against citizens. It’s not good enough to say, “Go to another county if you want a license.” It’s not good enough to say, “I won’t let anyone get married.” Those aren’t a clerk’s decisions to make.
“Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance,” wrote U.S. Supreme Court Justice Anthony Kennedy,in the 1996 case of Romer v. Evans.
Since the decision in June, many commentators who should know better have been spreading a false narrative. After its decades-long fight for marriage equality, they say, the gay movement has become an intolerant juggernaut crushing anyone who dares to question same-sex marriage. Soon, they warn, federal officials will begin pulling pastors from the pulpits, and judges will order the IRS to strip tax-exempt status from religious schools that do not embrace marriage equality.