A Christian county clerk in Rowan, Kentucky, has been refusing to issue marriage licenses to same-sex couples on the grounds that it would violate her religious beliefs. Appealing to Supreme Court Justice Elena Kagan for relief from an order by the state that she begin granting the licenses, she was rebuffed yesterday by the high court.
As a libertarian and a person of faith, I don't often utter these words, but Justice Kagan is in the right and the Christian county clerk is in the wrong.
Storm clouds have been gathering for quite a while in the battle over religious liberty and conscience protections in this country. Christian bakers and florists are being fined for declining to provide their services for gay wedding ceremonies, and people are increasingly agitating for federal laws that would make sexual orientation a protected class, in essence forbidding a private employer from declining to hire someone who is gay. These are grave injustices being done or contemplated by the government, against Americans, in violation of our First Amendment liberties.
Private individuals should have the right to live out their faith, and that includes deciding whom to employ and with whom to do business. Equally as important, when making those decisions they should have the freedom to determine which criteria matter most to them. Put simply, people should be able to start a business or a civic organization and run it in accordance with their values.
If you were looking for a guiding maxim for a free society, one contender might be that citizens should not be forced to enter into private contracts against their will. This means that you can't be made to work for a particular organization if you don't agree with the terms of employment being offered. But it also means that I can't be made to hire a particular job candidate or take on a particular client if I don't think doing so would advance the mission of my orgainzation. That's what freedom looks like.
The governor of Kentucky has ordered the Rowan County clerk, Kim Davis, to fulfill the requirements of her job by issuing marriage licenses to same-sex couples or else resign her office. She is refusing to do either, in violation of the law. For this she will face consequences—perhaps charges, perhaps impeachment, perhaps some other sort of sanction a judge decides is proper. This is as it should be. There's no right to draw a paycheck for a job you're actively refusing to do.
Some on the right have suggested that employees should enjoy conscience protections allowing them to refuse to perform actions they don't agree with without having to worry about losing their jobs. They add that this should apply equally to public and private employees. From a libertarian perspective, however, I don't see how that holds water. At the risk of repeating myself, an employer should have the right to decide whether or not to employ someone. As long as the decision doesn't violate a contract both parties entered into, he should also have the right to terminate someone's employment—especially if the employee is refusing to carry out an important part of the job. I wouldn't support forcing a private business owner to keep someone on the payroll who isn't fulfilling all his duties any more than I support forcing the government to keep paying the county clerk that has decided not to hand out marriage licenses to people she doesn't want to be married.
Imagine if I took a job at a pro-life advocacy group and then announced that arguing against most abortions violated my beliefs! (Not that that would ever happen, but you get the idea.)
When the Hobby Lobby decision was handed down by the Supreme Court last year, I cheered a great victory for religious liberty and the idea that people should be able to live out their values on their own terms. I only wish that most basic protection extended to everyone, religious or not, regardless of the type of enterprise in which they're involved. The state ought not be in the business of dictating the terms of private contract to consenting adults. But neither can an obstinate adult refuse to uphold the law she publicly swore to serve without facing any consequences.