Tag: Religious Freedom

When To Defy The Law

Earlier this week, I blogged about Kim Davis, the Kentucky clerk who has refused to issue marriage licenses to same sex couples in defiance of an edict from the governor and a court order. Yesterday, she was jailed for Contempt of Court and her deputies began to issue the licenses.

Eugene Volokh has a great breakdown of the relevant law. Long story short, Davis may have a claim under Kentucky’s RFRA law, which allows the state to accommodate religious beliefs if the accommodation is not a burden:

Davis’s objection, it appears (see pp. 40 and 133 of her stay application and attachments), is not to issuing same-sex marriage licenses as such. Rather, she objects to issuing such licenses with her name on them, because she believes (rightly or wrongly) that having her name on them is an endorsement of same-sex marriage. Indeed, she says that she would be content with

Modifying the prescribed Kentucky marriage license form to remove the multiple references to Davis’ name, and thus to remove the personal nature of the authorization that Davis must provide on the current form.

Now this would be a cheap accommodation that, it seems to me, a state could quite easily provide. It’s true that state law requires the County Clerk’s name on the marriage license and the marriage certificate. But the point of RFRAs, such as the Kentucky RFRA, is precisely to provide religious objectors with exemptions even from such generally applicable laws, so long as the exemptions don’t necessarily and materially undermine a compelling government interest.

If that is indeed the case, it seems that this issue could be resolved relatively quickly. Davis, as far as I know, is mostly pursuing a federal claim which SCOTUS had rejected. Hence, the Contempt order.

I think it is entirely appropriate to charge her with Contempt. As I noted earlier, her choices were to issue the marriage licenses or resign. Religion is something that can be accommodated. It is not a shield with which to defy the law.

However … a second debate has emerged from this with conservatives arguing that liberals defy the law all the time without consequence and that Davis is being persecuted because her objections are religious rather than political. This rebuttal has focused on several examples:

Gavin Newsom, while mayor of San Francisco, had his clerks issue marriage licenses to gay couples in defiance of state law. Is this the same as Davis? No, it isn’t. Newsom was not violating anyone’s civil rights by issuing the licenses. Moreover, it was a publicity stunt, one that paid off for Newsom with the Lieutenant Governor’s position. In the end, the marriages were annulled and Newsom stopped issuing the licenses. There was no defiance of a court order. That having been said, Newsom was in the wrong and had he defied the Court order, I would have supported a Contempt charge. Even if what Newsom was doing was an act of civil disobedience, civil disobedience includes the consequences of your actions.

Sanctuary Cities are another touted example, but this too fails. As Jonathan Adler points out, whatever one may think of sanctuary cities, they are not defying federal law:

The Constitution establishes that federal law is supreme. But it is also well-established that the federal government may not “commandeer” state and local governments to implement federal law. What this means is that the federal government is free to enforce federal law, including immigration law, whether state or local officials like it or not. At the same time the federal government cannot dictate that state and local officials enforce that law on the federal government’s behalf.

This was upheld by SCOTUS when the Court ruled that the Federal government could not force states to carry out firearms background checks on its behalf.

Attorneys general and governors who refused to defend anti-gay marriage amendments in Court have also come in for scrutiny. We’ve debated this in the comments before. As Doug Mataconis points out, it is perfectly acceptable for a governor or President to refuse to defend a law in Court if they believe it to be unconstitutional. In fact, numerous Presidents, including Republicans, have done so before. It would not be appropriate for an attorney general to do it on his own; they are supposed to follow the orders of the President or the governor. But it’s acceptable for an executive. If a new President is elected, there is no requirement for him to embrace the Constitutional theories of his predecessor.

Marijuana legalization has been cited with people saying that it is lawless for the federal government to not go after state marijuana dealers in Wyoming and Colorado (as well as other states with medical marijuana laws). I don’t see this as comparable either. First, the federal government has been going after legal pot dealers, as we’ve documented numerous times. Second, this goes down to prosecutorial discretion, in which federal prosecutors have been told to concentrate their resources on other crimes.

That having been said, I would be much happier about the situation if Congress passed a law to protect state-legalized marijuana shops and clinics.

D.C. clerks have reportedly been refusing to issue conceal carry permits in defiance of a judge’s order. I’m having trouble finding documentation of this claim. As far as I can tell, there is still an ongoing lawsuit over the matter. DC is a restrictive may-issue state, so there is no obligation of clerks to issue conceal carry permits. And it appears that while a judge ordered them to start issuing permits, that order was stayed. If, however, the District receives a Court order to start issuing and refuses to, that would be comparable to the Davis situation.

I’m eager to find examples of people refusing to carry out the law with impunity, but the examples touted so far are not convincing. I’m not seeing any evidence that Davis is being unfairly singled out.

Doing Your Job

Shortly after the Obergefell decision was handed down, the states complied with the ruling by instructing their employees to issue marriage license to gay couples who applied. Almost all have complied. A couple of counties in Texas and a few in Alabama are refusing. But the debate has come to center around Kim Davis, a clerk in Rowan County, Kentucky, who has refused to issue marriage licenses because she says it violates her religious liberty. She has been ordered by the courts to issue marriage licenses and the Supreme Court has now denied her appeal on religious grounds.

On this matter, I find myself agreeing with Ed Morrissey:

We’ve written plenty of posts defending religious freedom and the right to choose not to participate in private ceremonies, but this case is different. The other cases about which we have written involve private enterprise — bakers, photographers, venue owners — who do not exercise a monopoly on their markets. Operating a private business should not strip people of the right to free religious expression in all phases of their lives; other businesses can and do wish to participate in those events, and the free market should be free for all within it.

Government is not a free market, however; it is a monopoly backed up by force. If the law says these couples can apply for and receive a marriage license, then government has to abide by that law. They exercise a monopoly on marriage licenses; these couples cannot go anywhere else to get one. This is a denial of access to market by government force, essentially, a much different situation than with bakers, photographers, and so on.

Accepting office in government means upholding the law. If that conflicts with Davis’ religious beliefs, then she should resign and find other work. Ignoring the law and denying services on the basis of an official’s own desires is a form of petty tyranny. We may not like the law, but those in office cannot be allowed to decide for themselves which they follow on the basis of personal preference.

I said the same thing when Judge Roy Moore refused to move a monument to the Ten Commandments after a court order (and Moore is also telling Alabama clerks not to issue licenses). If you have a moral objection to what the government has ordered you to do, you should resign your position. You do not get to just refuse and keep drawing a paycheck.

There’s been some noise about how many times Kim Davis has been married and what her personal life is like. I find that to be pointless muck-raking. If Davis were a paragon of virtue, would that make a difference? Then what’s the point in wallowing in her personal life? She would be wrong if she were Mother Theresa. Her job to is to issue marriage licenses compliant with the law. She’s not doing her job. She’s disobeying a court order. Either force to resign or arrest her for Contempt.

Thou Shalt Cover

As I said on Twitter, the Obama’s administration’s ridiculous fight against the ministerial exemption — a fight they lost 9-0 in the Supreme Court — suddenly make sense:

The Obama administration announced today it will wait for a year (coincidentally until after the elections) before requiring religious organizations to comply with an Obamacare mandate that they provide coverage for contraception — including controversial drugs that can abort an early pregnancy.

This started with a decision by the Obama administration last summer listing the “preventive” services that must be covered by health plans under Obamacare without charge to patients, and the list included contraception.

Look, I’m pro-birth-control. I believe in comprehensive sex education and subsidies for poor people (although birth control is not really that expensive). I believe colleges and universities should make birth control available for their students. I’m so pro-birth control, I wear a condom when I blog.

But there is some daylight between that position and thinking government should force religious institutions to cover birth control (which basically means providing it). In the first paradigm, you are increasing people’s choices and freedom. In the second, you are decreasing it, forcing people to spend money for things that they may morally object to.

Although I think National Review has a point on this being on attack on religious freedom, I don’t think this is “war on religion”, per se, despite Newt’s ranting on the subject. It’s more of a war for religion — the secular religion of statism; the belief that government knows best. It started about a decade ago, when Bush’s faith-based initiatives forced religious charities to put more money into drug treatment than they wanted to. It has continued with the fight over gay adoption, in which Catholic charities have ended adoption services rather than let gays adopt children. This is simply the next step: forcing religious institutions to provide birth control.

As I said when this issue first cropped up, the issue is simple: this is giving too much power to government. Making birth control available is sensible. But forcing employers to pay for it — for people who are insured and can likely afford it on their own — is simply a bridge too far.

Think of the precedent. If a Democratic President can force institutions to pay for services with which they have a moral qualm, where does it end? Can they force them to pay for stomach stapling? Can they force them cover stem cell treatments? What about sterilizing people who we decide shouldn’t reproduce — an idea that surface every few decades?

Think of what this means for the insurance paradigm: If a Democratic President can decree that all insurance will cover birth control why can’t a future Republican President decree that none will cover abortion? Once you inject government into these decisions, you have opened a can of worms.

Now this is supposed to save us money. But first of all, who died and made government God? (Answer: the Constitution). Even assuming birth control would decrease healthcare costs — and let’s put a pin in that — who is government to tell me I have to take the cheaper option? For some of these religious institutions, they would rather take on the higher insurance cost. Who are you to tell them how they may or may not spend their money? Birth control is a great idea; it’s not a fundamental right. This isn’t free speech were talking about.

Now, about saving money. Preventative care may save lives but it does not save money. Birth control may save parents money but it does not necessarily save their employers money. And to be told how to save money by … stop that laughing back there! … the government is asburd. Just take a look at this:

In the past two decades, Medicare’s administrators have conducted demonstrations to test two broad approaches to enhancing the quality of health care and improving the efficiency of health care delivery in Medicare’s fee-for-service program. Disease management and care coordination demonstrations have sought to improve the quality of care of beneficiaries with chronic illnesses and those whose health care is expected to be particularly costly. Value-based payment demonstrations have given health care providers financial incentives to improve the quality and efficiency of care rather than payments based strictly on the volume and intensity of services delivered.

In an issue brief released today, CBO reviewed the outcomes of 10 major demonstrations—6 in the first category and 4 in the second—that have been evaluated by independent researchers. CBO finds that most programs tested in those demonstrations have not reduced federal spending on Medicare.

That’s ten failures. You would expect one of those programs to have worked just by accident. But none have. And these are the guys we are going to listen to about controlling healthcare costs? These are the guys we want telling religious institutions what they shall and shall not pay for?