NEWS

Kim Davis isn't Hobby Lobby: Testing the limits of religious freedom

Aamer Madhani
USA TODAY

In the last 14 months, the Supreme Court dove deep into the debate on religious freedom with a landmark case legalizing same-sex marriage across the nation and a decision to give certain corporations an exemption to Affordable Care Act’s contraception mandate.

Michael Long (left) and Timothy Long, of Rowan County, raise their hands in front of a crowd of supporters after receiving their legal marriage license at the Rowan County Courthouse September 3, 2015 in Morehead, Kentucky. Kim Davis, an Apostolic Christian and a Rowan County clerk, refused to issue marriage licenses to same sex couples in defiance of a Supreme Court ruling, citing religious objections. Davis was held in contempt of court and placed in Carter County jail on Thursday, September 3rd.

But when the Supreme Court ruled this week that a county clerk in Kentucky who objects to same-sex marriage because of her religious beliefs could not continue to deny marriage licenses to the couples, the court made clear there are boundaries to one’s religious freedoms.

The rejection of the court’s decision is hard to swallow for backers of Rowan County clerk Kim Davis, in part, because of last year’s Hobby Lobby decision in which the court put freedom of religion above reproductive freedom by ruling that companies cannot be forced to offer insurance coverage for certain birth control methods they equate with abortion.

But the refusal by Davis, who was jailed on Thursday after defying the high court decision, is far different matter, according to legal experts. Her office ceased issuing marriage license to any couples, straight or gay, soon after the Supreme Court’s decision in June made same-sex marriage legal in all 50 states.

Like it or not, same-sex marriage is the law of the land. And unlike the family-owned Hobby Lobby arts and crafts store, Davis, an elected official, works for the state of Kentucky and is required to uphold the law.

“The biggest difference and absolutely dispositive fact is that Kim Davis a public official,” Stephen Vladeck, a professor at American University’s Washington College of Law. “In Hobby Lobby you had a private corporation. As a public official, Kim Davis is allowed to have religious beliefs at home and she’s allowed to have religious beliefs in her personal life, but she has constitutional obligations that can’t be made secondary.”

On Friday, while Davis remained jailed, her office administered the county’s first marriage license to a same-sex couple. Meanwhile, several Republican presidential candidates said that jailing Davis would only harden people’s views on the issue.

With Ky. clerk in jail, gay couples receive marriage licenses

Jeb Bush told a town hall in New Hampshire that there ought to be a way to accommodate both sides on the issue.

“It seems to me there ought to be common ground, there ought to be big enough space for her to act on her conscience and for, now that the law is the law of the land, for a gay couple to be married in whatever jurisdiction that is,” Bush said.

Republicans rally around Kim Davis (for the most part)

Davis's lawyers have remained insistent that the state has an obligation to accommodate her religious objections if doing so would be reasonable.

State lawmakers in Kentucky have floated removing the name of the county clerk from marriage licenses or shifting the duty of licensing marriages from the counties to the state.

But Vladeck suggested that such accommodations could prove to be problematic when you consider the number of functions that need to be carried out by individual government officials and bureaucrats.

“It’s such a slippery slope if we started allowing those individual government officials to bring their religion with them to work,” Vladeck said.