Why is Kim Davis getting so much attention?

So the latest, as I write this, is that there has been a rally of hundreds who gathered in support of Kim Davis, a county clerk in the US state of Kentucky who was jailed for refusing to issue marriage licences to gay couples.

Her husband (her 4th apparently) advised the crowd that his wife will not give in, so basically she will stay in jail.

OK yes, much has been already said by many and so I don’t intend to rake over that, expect to perhaps ponder over one question – why is this getting so much attention. The fact that she, a public official, has been jailed for being in contempt of court is of course worthy of media attention, but the media scrum train had already left the station before it came to that, so why exactly does this merit such focus?

She is not the first religious person in history who finds herself in a job that requires her to perform tasks that conflict with her specific religious beliefs, for example …

There are many nurses who, for religious reasons, understandably feel that they cannot personally assist in an abortion in any way
Then there was the case of a Jehovah’s Witness who had religious objections to raising a flag
How about the case of the IRS employee who had religious objections to working on tax exemption applications for organizations that promoted abortion.

The list goes on and on, staff who will not, for religious reasons, handle alcohol or pork, or work on a specific day.

First, let’s ask ourselves what is the legal position on all this?

Since it is clearly something that is obviously common, then there must be something there, and of course there is because we have Title VII of the federal Civil Rights Act that directs employers to accommodate religious employees on the understanding that doing so does not cause any “undue hardship,” (translation: costs an excessive sum to sort out). So what this means is that normally people work things out by simply delegating – “I’m sorry Mr Smith, I’m afraid I’ll not be able to assist, but my colleague over here will be right over to help you“.

So the key here is this – what makes the Kim Davis case quite different and rather unique is that she, as the county clark, would not step aside and permit a colleague to perform tasks she would not personally do, and by taking this stance she has crossed a line. No longer is she simply opting out for religious reasons, but has instead taken a position where she imposes her personal religious beliefs as state policy upon everybody.

OK, things are not quite that simple, because Title VII specifically excludes elected officials, but worry not because Kentucky does have the Religious Freedom Restoration Act (RFRA) and that does more or less the same for anybody involved in state related activities. (Hold this thought, I’ll be coming back to it)

Now, let’s make things even more interesting by pointing out that the objection Davis has is not just that she will not personally issue a license, but that because she is the elected clark, then regardless of who actually issues it, her name is on the license, and so the foundational basis for her objection is that fact. One possible form of very simple accommodation would be for the state to amend the licenses to remove a named individual and simply replace the County Clerks name with a more generic term such as “Rowan County Clerk”. Davis would, under RFRA be entitled to do this but only if she took this to a state court, and if she did, then she would probably get this accommodation without too much fuss. Incidentally, to enact such a change she simply needs a court directive because that is what RFRA gives her, there would be no requirement for the state to issue a modified statute for this to happen.

Ah … and now we have the catch-22 here. This has all gone to a federal court, and in that context the state specific RFRA does not apply, and nor does Title VII because that exempts elected officials. The federal view is that she is not being asked to condone same-sex marriage, but to simply verify that the legal requirements have been met and that doing just that does not impact her religious beliefs.

Since she refuses to do so, off to jail she goes … and so that is where we are now.

The rather obvious and very easy way out of this mess is for her to go back to a state court and seek an RFRA exception to have her name removed from licenses. You would think that her lawyers and all those around her would have her interests in mind and would have set wheels in motion for exactly this … but no, instead they are quite willing to happily stick her up on a cross and pop a crown of thorns on her head because their homophobic zero-tolerance belief needs to take precedence and trump any and all common sense or desire for accommodation, or for that matter her interests.

… and so that is basically what makes this all quite unique.

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