Monday, September 07, 2015

Changing the Rules in the Middle of the Game

'Mug shot' of Rowan County Clerk, Kim Davis
My first thought was that if doing her job conflicts with her conscience - she should resign. Kim Davis is the Rowan County Clerk in the State of Kentucky who has refused to issue marriage licenses to gay couples. She has been put in jail for defying a court order to issue those licenses. It is her obligation to issue them to anyone who desires to get married. And since gay marriage is now the law of the land, she is violating the law by refusing to issue them. She is in effect not doing her job.

From her perspective, however, issuing a marriage license to a gay couple violates her religion. Which holds that marriage is defined exclusively as a union between a man and a woman. Issuing a marriage license to a same sex couple is therefore a violation of God’s law.

It might be common sense therefore to simply resign a job that now entails requiring her to do something that violates her conscience.  For those of us that are religious, this is a no brainer. If for example the job of county clerk required working on Shabbos - an Orthodox Jew would refuse to work on Shabbos. 

This is the dilemma facing Mrs. Davis. When she was elected to her post, gay marriage was not the law of the land. It was up to individual states to mandate such laws. Her state did not. So when she was elected it was not only her choice to not give marriage licenses to gay couples - it was not even an option. Gay marriage was illegal in Kentucky.

Now that the law has been changed, this new requirement is unfair to her. She should not have to lose her job just because the ‘rules were changed in the middle of the game’.

But,there are always two sides to the coin. Her conscience - is the cause of great emotional pain to gay couples who were finally given the right to marry. Why should they now be denied that right just because of the personal religious convictions of a single clerk? This is not to say that I agree with gay marriage. I don’t. But it is now the law of the land. The county clerk is required to issue a marriage license to them.Refusing to do so is a violation of the law and an injustice to gay people.

So, what we have here in my view is a conflict between civil rights on the one hand and religious rights on the other.

Which is one reason I think the 5-4 decision by the Supreme Court granting marriage rights to gay people is a bad one.  They have in effect trampled the rights of religious people like Mrs. Davis in favor of the civil rights of gay people.

Even though a solution for her would be to resign, I certainly understand her resistance to it. However changing the rules in the middle of the game should never penalize anyone.

As I said earlier if I had a government job that did not initially require me to work on Shabbos – and the law was changed to require me to do so, I would not resign. I would fight it as a matter of principle. Religious rights are protected in this country by requiring employers to grant reasonable accommodation to people whose job requirements would violate their religion.

And that’s even when applying for a job knowing it requires such violation. When a new law is passed (by a divided court no less) after you already have a job that did not until now require it - that should all the more so be the case.

I therefore support Mrs. Davis. She should not be required to violate her conscience based on a law passed after she was elected. Nor should she be required to resign. Had the law been passed first, then she would be wrong.

What about the rights of gay people to get married? I’m sure there are other counties in Kentucky that can accommodate them. Their marriage will still be recognized by the state as required by federal law. Why should this poor woman be forced to violate her conscience based on a law that was put into place after she was elected?