Kim Davis will not win her showdown, but we would all do well to suit up for another civil liberties’ battle.
A ruling Sept. 15 by the 6th Circuit Court of Appeals and two separate polls in the ongoing legal drama of Kentucky clerk Kim Davis are distinguished not only by their findings, but by two underlying questions: Has Davis has done more damage than good for cause of religious freedom by claiming “God’s authority” and going to jail for five days for refusing to license gay couples to get married? And have the influence and power of the religious right both politically and publicly been exaggerated?
Very possibly to both.
The federal court in its decision rejected Davis’ request to order Kentucky Governor Steve Beshear to exempt Rowan County’s staff of clerks from licensing gay couples pending resolution of all motions in the convoluted case. The court’s finding was in response to a counter suit Davis brought against the governor after she was sued by four same-sex couples who were denied marriage licenses by Davis. In a motion still awaiting action, Davis’ attorneys, from the pro-Christian Liberty Council, argue that marriage licenses subsequently issued to the four couples who sued Davis should apply only to them and not to other same-same couples wanting to get married. Attorneys for the four couples, from the American Civil Liberties Union, filed a motion September 16 to reject that claim, citing “Davis’ latest attempt to avoid the obligations of her office.”
Three weeks earlier, however, the court tossed the primary argument in Davis’ case, that her religious faith should exempt her from licensing gay marriage. Had the court not done so, the implications would undoubtedly have armed elected government office-holders across the country with the authority to skirt the Supreme Court’s ruling last June that same-sex marriage is a federal right. The fundamental question therein is if the American public wants to bestow such a power in their elected politicians.
Two independent polls conducted in the midst of the legal wrangling in Davis’ case say not. They came to virtually identical conclusions, that nearly two-thirds of Americans don’t want public employees to have power to deny legal rights to anyone regardless of the religious beliefs of the government worker and the sexual orientation of the person being served.
The first poll, conducted by the Washington Post and ABC Sept. 7-10 of 1,003 adults, determined 63 percent of those surveyed said Davis should be required to issue marriage licenses to gay couples and should not be exempt from doing so based on her religious views. Even more—almost 75 percent—said it is more important to treat everyone equally under the law than to accommodate a government worker’s religious beliefs.
Other findings fall more along respondents’ religious and political lines. Forty-five percent agreed with the court order that sent Davis to jail, while another 16 percent said Davis should be forced to license gay couples but should not be jailed if she refuses. Only a third said Davis should not be forced to issue licenses to gay couples. Not surprisingly, most in that group identified themselves as conservatives. Even among conservatives, however, while 49 percent said Davis should not be ordered to go against her religious belief, 45 percent said she should be required to perform the legal requirements of her job.
Those findings closely resemble the second poll, commissioned by the pro-equality Human Rights Campaign. Its poll was done September 9-13 and included 1,008 adults, more than two-thirds of whom opposed government employees from citing religious beliefs to deny people their legal rights. Only 24 percent supported such authority in government employees.
The HRC poll was commissioned in response to a New York Times editorial opposing a little-known House proposal called the First Amendment Defense Act, or FADA. As introduced, FADA would allow government workers the authority to refuse services to clients based on the workers’ religious belief, meaning clerks like Davis could turn away LGBT couples wanting or marry and claim representatives for agencies like Social Security could refuse to process benefits if the recipient is a same-sex partner.
But FADA has little support publicly and among elected representatives. Almost two-thirds, or 63 percent, of those surveyed by the HRC oppose FADA while only 28 percent back it. Among elected representatives, a bipartisan majority of 68 percent opposes the bill, but along party lines, a full one-half of Republicans support it as opposed to 41 percent of Republicans who don’t.
Both the Post-ABC and HRC polls pose a valid question if Davis, who has become the martyred diva of religious persecution, has brought more disrepute than support to the pro-religious freedom movement. Perhaps the more provocative issue is if the influence and power of the religious right have been diminished or, more arguably, if they have been over estimated in the first place.
But less idealistically, the federal court ruling that denied Davis her motion to order her state’s governor to exempt her and her staff from licensing LGBT couples may be more significant. Granting Davis the request could have had frightening consequences to civil liberties along with bolstering the fledgling FADA bill. The threat to gay people and couples everywhere would be tantamount to the Jim Crow barriers that African-Americans still face to some extent in being denied their century-old right to vote.
Through it all, religious exemption of government employees is fodder for the Supreme Court, and hints that another LGBT showdown at the high court may be in the making.
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