A calm discussion outside a Kentucky courthouse.

Photographer: Ty Wright/Getty Images

Clerk Opposed to Gay Marriage Shouldn't Go to Jail

Megan McArdle is a Bloomberg View columnist. She wrote for the Daily Beast, Newsweek, the Atlantic and the Economist and founded the blog Asymmetrical Information. She is the author of "“The Up Side of Down: Why Failing Well Is the Key to Success.”
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A Kentucky clerk has been ordered to jail for refusing to issue licenses for gay marriages. This seems like a tad bit of an overreaction. Unfortunately, it's what we've come to in the culture wars.

I'll start by stating my priors: I believe in very strong protections for freedom of conscience, religious and otherwise. That means I believe that Rowan County Clerk Kim Davis has a perfect right to oppose gay marriage, and indeed, to refuse to issue those marriage licenses. But she does not have a right to refuse to issue those licenses while still remaining county clerk. 

Except in cases of public accommodations like taxis and hotels, people should have wide latitude not to provide commercial support to activities their religious beliefs tell them are wrong. Or serve religious people whose views they find abhorrent, for that matter.

But Kim Davis does not have the right to refuse to issue marriage licenses while remaining county clerk, any more than pacifists have a right to become military officers and order their men to desert, or Christian Scientists have a right to become dean of Harvard Medical School. She's sworn to uphold the laws of the United States, Kentucky and her county. If she can't carry out her job, then she should resign.

In other words, Catholic doctors who don't want to perform abortions should have a right to refuse. And hospitals that want to fire them for refusing should have that right. You cannot demand a religious accommodation that is essentially refusing to do a core part of your job. Comparing Kim Davis to the many people who have been persecuted for their Christian beliefs is absurd. The choice for early Christian martyrs was to reject their faith or die. The choice was not: reject their faith or lose a good job as head priest at the Temple of Jupiter.

Unfortunately, Kim Davis is not a normal employee, who could be quietly dismissed after whatever necessary civil service investigations are concluded -- or at the very least, moved to a part of the government where her religious beliefs would not conflict with her job. She's an elected official, who can be impeached, but not dismissed. And in Kentucky, where gay marriage is unpopular, the political system doesn't seem particularly interested in undertaking that task. So a judge was left with an unpalatable choice: allow Kim Davis to defy the law with impunity, or throw her in jail for contempt of court.

The judge made absolutely the right choice, much as I rue the necessity. Rule of law is one of the most important things between us and barbarianism. No, it is never perfect, but it is better than the alternative. It has to be preserved no matter which side is the target. Conservatives who applauded the Hobby Lobby decision and now applaud Kim Davis should take a long, hard think about how they'd feel if President Obama took a bold stand for freedom of conscience by slapping Hobby Lobby with fines in open defiance of the Supreme Court. If you think that only the other side has to obey laws they don't like, then you are not in favor of the rule of law. You are in favor of law as a crude tool for the raw exercise of power -- and when you are in a minority, as the opponents of gay marriage are, then you should carefully consider where this is likely to end up.

Unfortunately, the sheer volume of the culture war makes it hard to ask those questions. It's much easier to ask "my team or yours"? And where that ends up is absurd results like a county clerk going to jail, instead of quietly going to work somewhere more suited to her religious principles.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Megan McArdle at mmcardle3@bloomberg.net

To contact the editor responsible for this story:
Philip Gray at philipgray@bloomberg.net