opinion

It's time to remove Kentucky clerk Kim Davis

Kim Davis, the Kentucky clerk who has been refusing to issue marriage licenses to same-sex couples on the grounds that doing so would violate her religious beliefs, claims that the state should not force her to act against her conscience. I agree. As a gay-rights advocate — and a gay man myself — I support her right to live in accordance with her religious convictions, even if that means not issuing marriage licenses to same-sex couples.

What I don't support is allowing her to continue collecting paychecks for an $80,000 a year state job which she declines to perform. If her conscience renders her unable to issue marriage licenses to those legally qualified, then the right thing for her to do is resign. After all, issuing marriage licenses is not a peripheral, non-essential part of being county clerk — it's a central job function. Her current stance makes no more sense than that of an Amish person who expects to retain a job as a bus driver.

Some background: Back in June, when the U.S. Supreme Court recognized same-sex couples' right to marry in all fifty states, Davis ceased issuing marriage licenses to anyone rather than grant them to gay couples. She also forbade her deputy clerks to issue them, on the grounds that her name (although not her signature) would still appear on the licenses.

Several couples sued, and U.S. District Judge David Bunning ordered Davis to issue the licenses; he then stayed his decision so that she could appeal. A unanimous U.S. 6th Circuit Court denied her appeal last week. Davis then made an emergency appeal to U.S. Supreme Court Justice Elena Kagan, who oversees the judicial district that includes Kentucky. Kagan referred the matter to the full Court, which on Monday denied Davis's appeal without comment. This morning Davis announced that she will still not issue marriage licenses today. Reports say that a hearing is set for Thursday to determine if Davis should held in contempt of court.

In asking the court to grant Davis a religious exemption, her attorneys compared her to a conscientious objector being forced to go to war, for example, or an opponent of capital punishment being forced to participate in executions.

But these analogies fall flat. Unlike the conscientious objector, Davis is not being drafted into service against her will. She has chosen a job that requires her to grant licenses in accordance with civil law. She is no longer willing to do that. She should not expect to keep her job, any more than a military commander would keep his job if he became a pacifist, or a surgeon would keep her job if she became a Christian Scientist and refused to perform surgery. Religious liberty does not entitle the bearer to line-item vetoes for essential job functions.

Davis cites her Apostolic Christian faith to support the traditional definition of marriage as one man and one woman. But civil marriage and religious marriage, though historically intertwined, are not the same thing, and Davis's job is to administer the law, not a sacrament. Many conservative religious believers oppose interfaith marriage, or re-marriage after divorce. As citizens they are free to do so. They are not free, however, to substitute their understanding of marriage for the state's when acting in an official state capacity.

Many have commented on the fact that Davis herself has been divorced several times. As a strategic matter, this makes her a rather poor poster child for "traditional Christian marriage": Jesus himself treats divorce and remarriage as akin to adultery. But the point is not merely ad hominem: Davis's willingness to impose a standard of marriage on gays that she does not apply to others, herself included, shows that she's less interested in enforcing a consistent traditional Christian view than in singling out gays for disapproval. In its Obergefell decision, the U.S. Supreme Court rightly rejected such treatment as an affront to dignity and equal treatment under the law.

Private citizens are free to express their religious views about homosexuality — however hypocritically and inconsistently — and to practice their faith as they see fit. But religious liberty is not a "get out of your job free" card.

John Corvino is professor and chair of philosophy at Wayne State University. Read more from him at johncorvino.com.