From both left and right, critics of Kentucky county clerk Kim Davis have criticized her as a law-breaker. Supporters of same-sex marriage say that her religious scruples don't give her the right to pick and choose what responsibilities she'll fulfill. Critics from the right have said her stance is a threat to law-and-order.
Eugene Volokh shows in the Washington Post that the issue is more complicated, more complicated legally. After all, religious scruples are often accommodated in the workplace. In fact, under Title VII of the federal Civil Rights Act, they have to be. As Volokh summarizes, “both public and private employers have a duty to exempt religious employees from generally applicable work rules, so long as this won’t create an ‘undue hardship,' meaning more than a modest cost, on the employer.”
So, nurses don't have to be involved in abortions, Jehovah's Witnesses don't have to raise flags, Muslims don't have to drive trucks containing alcohol.
Volokh isn't sure this is the best way to guarantee religious freedom: “The government is barred by the Free Exercise Clause from discriminating based on religion, but the government has no constitutional duty to give religious objectors special exemptions from generally applicable rules. Maybe it (and private employers) shouldn’t have such a statutory duty, either.” Regardless, it is the way the Civil Rights Act has been applied “for over 40 years.” Reasonable as it may sound, the rule has not accepted the “you don’t like the job requirements, so quit the job” argument.
That's not a slam-dunk for Kim Davis, though, since “Title VII expressly excludes elected officials.” For Davis, though, a Kentucky version of the Religious Freedom Restoration Act kicks into gear. This has a much higher bar: “to deny an exemption, the government must show not just ‘undue hardship' but unavoidable material harm to a ‘compelling government interest.'”
On the other hand, there's the question of whether Davis has a Constitutional duty to issue same-sex marriage licenses, whether refusing to sign them imposes an “undue hardship” on the citizens of Rowan County. Volokh thinks she could bypass that dilemma by pursuing a more limited exemption. What she has objected to is the fact that her name appears on the licenses, which Davis takes as an implicit endorsement of same-sex marriage. It would not burden the county or its gay citizens if the licenses were issued without her name. And Volokh argues that it could be done without any modification of Kentucky law.
Conservatives who have tagged Kim Davis as a bad case and a foolish martyr have, in short, spoken too soon. There's a lot of legal water yet to pass under this bridge, and her case may end up carving out a good bit of space for other conscientious objectors. Hers is a cause worth supporting.
But we must also ask: If Kim Davis has a plausible legal right to ask for an exemption, why has her case become a cause celebre? Why hasn't everyone taken a deep breath and looked for ways to accommodate her religious convictions? The answer isn't difficult to determine. She must be made an example, because the fascist marriage regime can brook no public dissent. And for that reason too, we should stand with Davis, lest we end up standing with the bullies.