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Religious freedom and religious accommodations (Part 5)

October 5, 2015

In this post, I will tackle the story surrounding Kim Davis. She is the county clerk of Rowan County, Kentucky, who was jailed for some time for refusing to issue marriage licenses. Her rationale was that issuing them to same-sex couples would violate her religious beliefs.

The rules for this post are the same as in the last post: I will assume familiarity with the story. I will take only the Wikipedia article as it appears today (10/4) as canon. I care more about what is right rather than what is legal. And lastly, my chief concern is the application of the principles governing the interaction between the majority and the minority. As before, these principles are reproduced below for reference:

I believe that people have a right to the free exercise of their religion. This is actually only a small slice of a broader principle: that people have a right to live according to their identity.  

Conversely, it is wrong to require people to violate their conscience, their gender, their sexual orientation, their people's history, or other such categories that form one's core identity.  

I believe that the many - whether it be a large corporation, society at large, or simply "the majority" - also has a right to impose order and insure its own smooth operation.

Conversely, it is wrong for an individual or a minority group to disrupt the workings of the majority to satisfy their own needs.

I believe that, in case of a conflict, a balance should be struck. We should take the concerns of all parties into account and weigh them together to achieve a fair solution.  

Conversely, I am against one side simply imposing its will on the other. I will oppose actions whose chief goal is to forcefully restrict the freedom of others, whether it comes from the minority or the majority.  

I believe in cooperative, common-sense solutions characterized by nuance and empathy. 

Conversely, I am against ham-fisted, absolutist, or antagonistic decision making processes.  

Of course, we will not always find perfect solutions that perfectly satisfy all these principles. But especially in such cases, I believe that we should take special care not to favor the strong over the weak, the large corporation over the individual employee, the majority over the minority, or profits over personal rights.

If you've read this far in this series of posts, you likely know what I'm going to say about Kim Davis: we should seek balance. We cannot allow one clerk to simply deny marriage licenses to a whole county, but we also must not force an individual to violate their religious convictions. A simple, reasonable accommodation for the clerk should be sought. If such accommodation is not possible, we may have to go to second-best solutions, which require more complicated accommodations and therefore more cost to all involved parties, as in the "$60" solution in the previous post. If all attempts fail, then as the last resort, the county clerk may have to be removed from office, or be otherwise compelled to issue the licenses.

The problem in this story is that it's unclear how much accommodation Kim Davis requires. The story essentially starts off from the beginning with her refusing to issue marriage licenses. Now, if that's the end of the issue for her - if there is absolutely no way for same-sex couples to get their licenses while she's in office - then no accommodation is possible. She must resign, or be somehow compelled to issue the licenses.

However, if Davis is only asking for her name to not be on the marriage licenses, then that seems to be a simple matter. We just have to ask, "is this possible? Is it feasible? Is this costly, beyond what can be made up for by Davis?" If it turns out that this is a reasonable accommodation (which seems likely), then it should be made.

But, if this is what Davis wanted, why did she not start off her protest in that way? She could have issued licenses with her name manually crossed out. She could have changed her own name - perhaps to something like "Matthew 19:4-5". There are several different ways for her to circumvented her name appearing on the licenses. Then if she were challenged, she could legitimately say that she was only protecting her own religious freedom, with no intent to restrict the freedom of others.

What if Davis had only been asking that she herself not handle same-sex marriage licenses? Well, she has several deputy clerks. One of them could issue licenses in her stead. There should be no problems with providing that kind of accommodation to Davis - in fact, it seems likely that she could have implemented it herself without any trouble.

Failing all that, Davis might have offered the couples a monetary compensation for them to go to another county clerk, as in the "$60" solution in the previous post. However, this is a distinctly worse solution, even moreso than in the previous post. The differing nature of a business and a government office would dramatically increase the required compensation, to the point where this scheme would likely become unworkable. But at least it would be something - anything to show that there was some way for some kind of arrangement where Davis' religious freedom could be accommodated.

But in starting her protest by simply turning couples away, Davis seemed to be saying that her office will not issue any marriage licenses while she was the county clerk. Under those circumstances, it is entirely appropriate to call for her resignation, or to jail her to force her to act. Fortunately, after the usual legal and media circus, it turned out that it was acceptable for all parties for the marriage licenses to be issued without her name, through a deputy clerk. And that is how things are now done in Rowan County.

So this story seems to come to a reasonable conclusion - everyone wins, or at least doesn't lose. Same-sex couples get their licenses, and Kim Davis keeps her job and her clear conscience. A simple, reasonable accommodation allows for everyone to more or less get along. The "system" seems to have worked.

But as in the previous posts, I see several worrisome things. I wonder about our ability, as a society, to come to these reasonable conclusions. There seems to be a strong tendency for us to become polarized, line up on opposite sides, then cheer for whomever is on our side. Could Kim Davis not have simply started by implementing the reasonable accommodation herself? Why begin by turning people away? The opinions of many people reacting to this issue also seems to be entirely one-dimensional: in the Wikipedia article it says "When asked what Davis should do, 65% said that Davis should resign from office; 23% said that Davis should stay in office and continue to refuse to issue marriage licenses to same-sex couples; and 4% said that Davis should remain in office but issue licenses to all persons legally entitled to one." NONE of those three options come close to the solution they eventually settled on, the one that actually maintains balance among the rights of all parties.

Furthermore, apparently there are some people who are calling into question the validity of the newly issued marriage licenses, the ones without Davis's name that are issued by a deputy. Seriously? What good could come of this? You would invalidate the licences of couples that have already received them, so that you can imperil Davis's religious liberty? That's the lose-lose solution. The only thing it accomplishes is to further antagonize the other side by blowing everything up. It is perhaps the worst way for this story to continue, for pretty much everyone involved.

So... "God bless America". At the end of the day, that is perhaps the only thing that may be said here. He has done so abundantly up till now, and we'll surely need his continuing blessing into the future.

Next week's post will be a consolidation of this whole series of posts.


You may next want to read:
Religious freedom and religious accommodations (Consolidation post for this series)
The lifetime of evil (part 2)
The intellect trap
Another post, from the table of contents

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