Yesterday U.S. District Judge David Bunning sent a county clerk in Kentucky to jail for contempt of court after she defied his order to resume issuing marriage licenses despite her religious objections to same-sex unions. Kim Davis, the Rowan County clerk, stopped issuing licenses after the Supreme Court ruled that bans on gay marriage violate the 14th Amendment's guarantee of equal protection. Is Davis a contemporary George Wallace, defying a Supreme Court decision protecting the civil rights of her fellow citizens, or a brave champion of religious freedom? One of her senators, Rand Paul, apparently leans toward the latter view.
During a Boston radio interview on Tuesday, as Scott Shackford noted here, Paul responded to a question about Davis by saying that "people who do stand up and are making a stand to say that they believe in something is an important part of the American way." Yesterday, after Bunning's contempt ruling, the libertarian-leaning presidential contender told CNN, "I think it's absurd to put someone in jail for exercising their religious liberty. I think it's a real mistake, and even those on the other side of the issue, I think it sets their movement back."
The power of judges to lock people up indefinitely for contempt is indeed troubling, and Bunning's order, which went beyond what the plaintiffs requested (a fine), seems excessive. Furthermore, as Paul suggests, putting Davis in a cage may enhance her status as a conservative martyr and erode sympathy for the cause of marriage equality. But is Davis simply "exercising [her] religious liberty" by refusing to do her job? No. If she believes it's a sin to facilitate gay marriages, the honorable thing for her to do would be to resign. People cannot, in the name of religious liberty, insist on keeping a job when they are unwilling to perform the duties it entails.
That goes for private as well as government employees. If Davis took a job that required her to photograph gay weddings or bake cakes for them, she would have no right to reject those tasks on religious grounds and expect to keep the job.
But the fact that Davis works for the government adds another dimension to her defiance. The government, unlike private businesses, is constitutionally obligated to treat all citizens equally under the law. The Supreme Court has said that obligation means states must issue marriage licenses to couples without regard to their sexual orientation. As a representative of her state's government, Davis is obligated to comply with that requirement, just as county clerks who objected to marriages between people of different races (even on religious grounds) were obligated to issue licenses for such marriages after the Court concluded that bans on miscegenation violated the 14th Amendment.
As a private citizen, of course, Davis is free to take whatever view of gay marriage she believes is required by her faith, and she should be free to act on that view, provided she does not violate anyone's rights in the process. Hence Davis, if she decided to quit her job and open a bakery or a photography business, should not be legally compelled to participate in gay weddings, and neither should any other baker or photographer. This distinction between state action and private action, which Paul clearly understands, is vital to a free society, and Paul is dangerously blurring it by suggesting that Davis has a First Amendment right to violate the 14th Amendment.