Re­li­gious faith and the rule of law

Free ex­er­cise does not per­mit be­liev­ers to deny rights to non­be­liev­ers

The Washington Times Weekly - - Commentary - By An­drew Napoli­tano

Shortly be­fore the La­bor Day week­end, a fed­eral judge in Ken­tucky or­dered the Rowan County clerk in­car­cer­ated for vi­o­lat­ing his or­ders. Five days later, he re­leased her. The judge found that the clerk, Kim Davis, in­ter­fered with the abil­ity of same-sex cou­ples in her county to marry by re­fus­ing to is­sue them ap­pli­ca­tions for mar­riage li­censes. Ms. Davis ar­gued that she was fol­low­ing her con­science, which is grounded in a well-known Chris­tian an­tipa­thy to same-sex mar­riages, which, in turn, is pro­tected by the Free Ex­er­cise Clause of the First Amend­ment. Here is the back­story.

Ms. Davis is the clerk of Rowan County, Ky. Among her du­ties as county clerk is the is­suance of ap­pli­ca­tions for mar­riage li­censes. When she as­sumed of­fice, she took an oath to ad­min­is­ter her du­ties con­sis­tent with the U.S. Con­sti­tu­tion. Her job with re­spect to li­censes is min­is­te­rial: is­su­ing doc­u­ments to those who legally qual­ify for them and fil­ing the doc­u­ments when they are re­turned to her.

Ken­tucky law re­quires that ap­pli­cants for mar­riage li­censes be un­mar­ried, res­i­dents of Ken­tucky and at least 18 years of age. As a county clerk, Ms. Davis can­not add to these re­quire­ments another re­quire­ment — namely, that the ap­pli­cants be of the op­po­site sex. She can­not do that be­cause the Supreme Court has ruled that mar­riage is a fun­da­men­tal lib­erty, the ex­er­cise of which is pro­tected by the Con­sti­tu­tion, and within that lib­erty is the right to choose a same-sex mar­riage mate, un­in­ter­fered with by the state.

By adding her own re­quire­ment and us­ing the force of law to en­force that re­quire­ment, she is frus­trat­ing the rul­ing of the Supreme Court, interfering with the fun­da­men­tal lib­er­ties of mar­riage ap­pli­cants, and vi­o­lat­ing her oath to up­hold the Con­sti­tu­tion, the fi­nal in­ter­preter of which is the Supreme Court.

Af­ter Ms. Davis re­fused to com­ply with two of his or­ders to is­sue ap­pli­ca­tions to those who com­ply with Ken­tucky law and not to add her own re­quire­ment, a fed­eral trial judge found that she was in a state of civil con­tempt, and he in­car­cer­ated her.

Civil con­tempt is not a crime. Hence, she was not sen­tenced to a jail term. The pur­pose of her in­car­cer­a­tion was not pun­ish­ment; rather, it was co­er­cion. The courts have lim­ited re­sources with which to co­erce re­luc­tant lit­i­gants to com­ply with court or­ders, and in­car­cer­a­tion is one of them.

The court prop­erly in­ter­preted its du­ties un­der the Con­sti­tu­tion, but was wrong to in­car­cer­ate her.

Ms. Davis is run­ning a county clerk’s of­fice, not a church and not a leg­isla­tive body. More­over, her im­po­si­tion of her own re­li­gious re­quire­ment upon the li­cense ap­pli­cants vi­o­lates the well-re­spected and long-held First Amend­ment value of sep­a­ra­tion of church and state. She is free to be­lieve as she wishes and to prac­tice her be­liefs, is free to im­pose her be­liefs on her chil­dren and fam­ily, and is free to at­tempt to per­suade oth­ers of the salvific value of her be­liefs. But she is not free to use the force of law to fur­ther her be­liefs by deny­ing le­gal rights to those un­will­ing to ac­cept them.

Sup­pose her re­li­gion for­bade in­ter­ra­cial mar­riage (as some Mor­mon Churches do). Could she deny a mar­riage li­cense ap­pli­ca­tion to an in­ter­ra­cial cou­ple? Or, sup­pose she was a tra­di­tion­al­ist Ro­man Catholic, who be­lieved that Catholics should only marry other Catholics. Could she deny a mar­riage li­cense ap­pli­ca­tion to a Catholic plan­ning to marry a non-Catholic? Or sup­pose her re­li­gion con­demned the pri­vate own­er­ship and use of guns (as some Quakers do). Could she refuse to is­sue ap­pli­ca­tions for gun per­mits? The an­swers are ob­vi­ous.

If her per­sonal re­li­gious views could trump her obli­ga­tions un­der the law when she is in a min­is­te­rial and not a dis­cre­tionary gov­ern­ment job, and other gov­ern­ment of­fi­cials sim­i­larly si­t­u­ated could do the same, then we’d lack the rule of law in Amer­ica, and we would live in­stead un­der the dis­cre­tion of bu­reau­crats.

But she should not have been sent to jail. Judges must do all pos­si­ble to re­sist the temp­ta­tion to in­car­cer­ate de­fi­ant lit­i­gants, be­cause in­car­cer­a­tion should be the last re­sort. Judges should en­force their rul­ings us­ing the least force nec­es­sary, not the most force avail­able. And history teaches that for those who con­sci­en­tiously defy the law — par­tic­u­larly for re­li­gious-based rea­sons — in­car­cer­a­tion is of­ten fruit­less.

I would have re­moved her au­thor­ity to is­sue mar­riage li­cense ap­pli­ca­tions and as­signed it to oth­ers in the Ken­tucky state gov­ern­ment, and di­rected them to is­sue the ap­pli­ca­tions in ac­cor­dance with the law. That would have kept Ms. Davis free and her con­science clear, and per­mit­ted those in Rowan County to get mar­ried to whom they choose.

What about the St. Thomas More ar­gu­ment: “I die the King’s good ser­vant, but God’s first”? That is not rel­e­vant here. More was tried, con­victed and ex­e­cuted for his per­sonal re­fusal to ac­cept a hereti­cal doc­trine: that the mon­strous King Henry VIII was some­how the head of the Ro­man Catholic Church in Eng­land. Even More ad­mit­ted that one must do all one can to avoid mar­tyr­dom, even leav­ing public of­fice know­ing that one’s suc­ces­sor will do what one has re­fused.

The Free Ex­er­cise Clause guar­an­tees in­di­vid­u­als the law­ful abil­ity to prac­tice their re­li­gion free from gov­ern­ment in­ter­fer­ence. It does not per­mit those in gov­ern­ment to use their of­fices to deny the rights of those who re­ject their be­liefs. That is the les­son for Kim Davis. An­drew P. Napoli­tano, a for­mer judge of the Su­pe­rior Court of New Jersey, is a con­trib­u­tor to The Washington Times and Fox News. He is the au­thor of seven books on the U.S. Con­sti­tu­tion.


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