Religious Accommodations for County Clerks?

Abstract

Rowan County Clerk Kim Davis engendered considerable controversy after she instituted a “no marriage licenses” policy to avoid facilitating the marriages of same-sex couples in conflict with her religious beliefs. Federal District Court Judge David L. Bunning has been overseeing this dispute, which has included intermittent appeals to the Sixth Circuit, and even the United States Supreme Court. What is the basis and strength of her religious freedom claim? Is the only solution to the conflict between her sincerely held religious beliefs and the right of same-sex couples to marry for Davis to resign from her position as county clerk? The likely answer is yes.Davis has used religious freedom arguments to be exempted from issuing same-sex marriage licenses and certificates. She has argued she should not be held in contempt for disobeying a federal court’s order to issue marriage licenses and certificates because her refusal is based on sincerely held religious beliefs. She has also filed a third-party complaint in federal court against Kentucky Governor Steve Beshear and Commissioner Wayne Onkst seeking primarily an exemption under state law from issuing marriage licenses and certificates in conflict with her religious beliefs.Part I of this article places Davis’ legal claims in historical context. Part II discusses the strength of her religious freedom argument. Part III concludes by suggesting how these kinds of claims should be considered in the future. While Davis may have a cognizable claim that her religious freedom is “substantially burdened” by issuing marriage licenses and marriage certificates, it may not be possible for a court to fashion an accommodation under state religious freedom law without unconstitutionally demeaning the marriages of gay men and lesbians.