SCOTUS to KY clerk: Issue marriage licenses. Clerk: No

It’s the end of the legal road for Kim Davis in her bid to claim a religious exemption from issuing same-sex marriage licenses in Kentucky. Davis had filed suit to continue her refusal after the Obergefell decision, and had won a stay in federal court against any enforcement action. That stay expired yesterday, and the Supreme Court refused to extend it in a brief one-sentence order:

The Supreme Court on Monday turned down a Kentucky county clerk’s request to be excused from issuing marriage licenses to same-sex couples, the court’s first involvement in a series of legal battles that have erupted since gay couples won the right to marry.

The court, without comment, turned away a request by Kim Davis, the elected clerk of Rowan County in northeast Kentucky, who faces fines or even jail time if she doesn’t begin issuing marriage licenses Tuesday. Davis, a devout Apostolic Christian who opposes same-sex marriage, has argued that doing so would violate her religious liberties. …

Davis — who stopped issuing licenses to all couples, gay and straight — had not indicated late Monday how she would respond to the court’s decision. If she refuses to comply, she could be held in contempt, leading to daily fines or jail time. At a recent rally, Davis adopted a defiant tone, asking for prayers to “stand firm.”

Mat Staver, chairman of Liberty Counsel, a Christian legal group that is representing Davis, demurred earlier Monday when asked how she would respond if she lost.

“She’s not going to resign, but to issue a marriage license is a direct conflict with her religious convictions,” he said. “So it would put her in a real Catch-22 over having to make a decision about her convictions.”

That hasn’t stopped Davis. This morning, she again refused to issue marriage licenses to same-sex couples, saying she planned to appeal an earlier decision in the appellate court. Competing demonstrations began outside the courthouse, and the standoff continues:

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.

One might sympathize with Davis on her religious objections to same-sex marriage, but that doesn’t give her the authority to deny it if it is lawful. A politician might object to alcohol purchases, perhaps even on religious grounds, but he can’t deny permits to liquor stores in a jurisdiction that allows them just because of his religious objections to alcohol consumption. That would be an abuse of power, the kind conservatives would protest in other circumstances.

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.

Update: Kim Davis works for Rowan County. Initially, I had given her name as Kim Rowan in a couple of places. Thanks to Twitter user @Dew5150 for the correction.

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