Drawing the Line Between Civil and Religious Rights

The clash over marriage licenses in Kentucky teaches a valuable lesson on the dangers of elevating religious rights over civil rights.

Comments: 217

  1. Ms Greenhouse unfailingly clear
    A writer I'll always revere,
    Again hits the mark
    The line drawn is stark,
    And not based on Tea Party fear.

  2. "Inevitably, if history is any guide, a tipping point will come that causes society to push back and recalibrate the balance"

    I would love to have your optimism that we may have reached that point. I do not. Roberts reads the news and, I am quite sure, hears what other Republicans have to say about him. This latest debate was ugly - the same kind of ugly another Republican appointee found himself in the middle of as he was serving in a supposedly independent position: the former Fed Chairman Ben Bernanke. Lucky for us, his views on what the economy needs aligned perfectly with what was needed and the lack of policy due to forced austerity.

    It doesn't seem to me that Roberts is acting in the same spirit as Bernanke or that, given the pressures of a politically hostile environment, would be as impervious to pressure. Bernanke was nearing the end of his term at the worst of the nastiness. Roberts will be on the court for a very long time to come. When it comes to religious rights, the Roberts court has shown over and over again that it is quite capable of regulatory favoritism. Contraception is one such case. The same logic that applies to same-sex marriage applies to one's ability to get contraception covered. But not for the court!

    I think it's a bit early to see any patterns or signs of things to come. What it could be is a sign of self-consciousness on the part of a court that is aware of its lopsided treatment of civil rights and haphazardly attempts to keep things even.

  3. Rema, thanks for the link. I am intrigued by political philosophy. I'm really liking Dworkin.
    ...and I like your website. I hope NYT pays you (and other great commentors) for your opinions. You are very insightful.

  4. Hi Rima - Thanks for posting this excerpt. Makes more sense than anything one can glean from the media. Getting this concept into actual practice would certain go a long way toward creating a country. or even just a city, that honors all humanity rather than break it down into profit centers for the benefit of only the elite few.

  5. This was not elevating one religious rights over civil rights.

    It was elevating one person's religious rights over other people's religious rights. It was allowing government to establish a religion, to assert one religion over others by government power.

    This becomes clearer for some if we consider Ms Davis having some other religion. What is she were Muslim, and would not allow marriages that violated those customs, but did allow up to four marriages at the same time for any man? Would that be her religious right elevated over civil rights? No, it would be elevation of her personal religion using her state power.

    It does not change if one shares her religion. It is still that same elevation of one religion by state power.

    And no, we are not a "Christian nation" in that sense. Our government does not do that. First Amendment, that is what it means, not that a government official gets to do that because she is free to do as her religion tells her to others using her government power.

  6. "Religious liberty "has come to mean that extremists, of every stripe, can pretty much do whatever they want, no matter who is harmed by their selfish activities. That is not the "freedom of religion" that sensible, altruistic people recognize.

  7. Exactly!

    More succinctly, Ms. Davis was using her government office to enforce her religion on others who do not share that religion.

    This is state enforced religious tyranny.

    Clearly unconstitutional.

  8. The height of absurdity is certainly reached when we begin to think that an individual employee's religious sensibilities could determine the benefits granted to the whole.

    Society will always have to live in the tension between the establishment clause and the "free exercise" clause. We have come a long way in recognizing that religiously we are not all on the same page and that that is ok. I am old enough to remember the move to open stores on Sundays and the deep protest against that by the religious establishment (the Christian religious establishment) which suggested that shopping on Sunday would be the beginning of the end of moral society as we knew it.

    In recent years it seems that a segment of the religious right-wing believes more and more that their own religious sensibilities ought to take preference in all that society does. That is sad at a time when the country is becoming more religiously diverse. It is also, perhaps, a frightened reaction to that diversity as a group of folks try to adjust to a society which is less and less likely to reflect their values and preferences as the dominant social norms.

  9. The Congress simply cannot make laws respecting tenets of religion, not can it make laws banning consensual practices of worship. Congress can enact "no laws" pro or con respecting religion.

  10. As an elected official, Ms. Davis sought to establish her religion as government policy. A first-rate violation of the Establishment Clause. End of discussion.

  11. Don't stop short of explaining that "establishment of religion" means "faith-based belief", not real estate.

  12. Wrong. If you paid any attention, her illegal actions were the start of the story. It's an easy guilty, but she spent a few days in jail in return for days of front page news. It's no good being on a hill, Mr. View, if you're wearing a blindfold.

  13. Her faith is the "establishment of religion" Congress is denied the power to respect in legislation.

  14. Yup, Kim Davis over stepped her bounds. And I think you are right, that we can thank her for this. The rights of others needs to be considered and not just Kim Davis' personal views. The tipping point is being reached on many subjects in this country in this election cycle. This is why Bernie Sanders is resonating with so many, filling stadiums and people's hearts with hope. He is for the greater good. We haven't really experienced this as a people since before Ronald Reagan. Let the tipping point begin!

  15. "Exercise of religion" is worship, not barging into other people's lives to demean them..

  16. Someone stated the issue succinctly the other day:

    " Ms. Davis placed her hand on the Bible and swore an oath to uphold the constitution - not the other way 'round "

    thus reminding everyone who has forgotten, that the whole reason this country exists is to get ' the state ' out of the religion business, no matter how inconvenient the fact is for the TeeVee-evangelist/author crowd who fund-raise and rabble-rouse as the moral majority, etc.

  17. R. Law, are low level government employees in Kentucky made to place their hands on the bible to be sworn into office? Are people in other states? I've never heard this and hope it's not true. If so, it should be ended. They should swear on a copy of OUR United States Constitution.

  18. njglea - The Ky. oath of office is available online:

    http://www.lrc.ky.gov/statutes/statute.aspx?id=21176

    indicating that if Ms. Davis was properly sworn, she declared to due her enumerated assigned duties before God, whether her hand was on a Bible or not.

    It seems that if she finds her personal convictions no longer allow her to perform her solemnly-sworn duties, she should resign instead of renege on her oath :)

  19. Yes, we gotta get rid of this bible-swearing thingy. It's a very strange notion.

  20. I think part of it is analogous to the problem Carly Fiorina talked about in last night's debate about fish not noticing the water they live in. I think plenty of people pushing on the religious liberty issue at some level don't recognize that the baseline in a pluralistic society is neutral, not Christian belief. This weekend neighbors of mine expected me to be available to them on a fundraising matter of theirs during the Jewish High Holy Days. They know, and their conduct reflects, in my opinion, their sense that social pressure not to be not Christian is acceptable. Once Christianity becomes the baseline, positions like Kim Davis' look less like violations of other people's rights and more like supporting free exercise, because other people's rights have been minimized already and are less of a factor being considered.

  21. I'm curious, Diane. Did you tell your neighbors that the days in question are days of religious observation for you? If you did, how did they react - did they apologize or did they expect you to accede to their calendar?

  22. Exactly right, as in my observation, the very need to refrain from placing requirements on the environment and interactions that assume same-ness, is considered to be an infringement on freedom.

    And it's true in a tribal sense, not even in a sense of actual moral values.

    For example, much is made of whether or not a store employee is asked by an employer not to say "Merry Christmas"; nothing whatever is made of that the commercial Christmas season runs from the day in September the back to school sales end, through the next nearly four months.

  23. vklip,
    I reminded them, I got a "happy New Year," nothing changed.

  24. Back in the day, some community leader, elected official or political boss in the county or state would have pulled Kim Davis aside, rebuked her and told her just to do her job. But that's not how we roll in America anymore where law for the laws sake has replaced common sense and thus everything is a matter of litigation.

    As a result, we get the usual Greenhouse blather that is divorced from reality as she and the legal community at large continue to sink America into a swamp of laws, rules and regulations that are only understood and interpreted by this new secular priesthood. And then become fodder for the media as opposed to making good policy.

    To use the hackneyed but relevant quote from Shakespeare, "The first thing we do, lets kill all the lawyers."

  25. So it's Greenhouse's fault that Davis didn't do as she should, and instead hooked up with a lawyer to turn the whole mess into a drama? That's like conservatives who rail against regulations...that come about because of individuals availing themselves of tort remedies that in turn result in regulations to try to avoid further law suitst. It all depends on where you want to establish the starting line for each of these narratives.

  26. podmanic, for the record, Ms. Davis is a Democrat.

  27. Can you imagine a more blatant transgression of "Congress shall make no law respecting an establishment of religion" than this ridiculous "Religious Freedom Restoration Act"?

  28. "Inevitably, if history is any guide, a tipping point will come that causes society to push back and recalibrate the balance"
    True but that means we need to pull back on the current weaponization of 'identity' in this country. We confer priviledges and power to those who cloak themselves in a particular identity and scream the loudest rather than seeking neutrality. Policy by individual stories and media tsunami.
    Christian fundamentalists are simply the latest aggrieved group to take a page out of the identity/victim playbook that badly needs to be defanged.

  29. Interesting:

    A government official seeks to impose her religious beliefs on citizens.
    Why does Kentucky seek to establish a specific religion on its citizens:
    Whatever happened to the First Amendment?

  30. Apart from the occasional conservative presidential candidate flogging an uncompromising position on the supremacy of religious views over secular law, mostly to appeal to a narrow base, it's good to see that the vast majority of responsible people on the right condemned this situation. For all the reasons given and documented here as given by others, Ms. Davis's position is both absurd and dangerous.

    But using an instance where a public official refuses to carry out her obligations under law for religious reasons to justify a general condemnation of private individuals who refuse to offer services for religious reasons is a stretch, and really requires another level of justification.

    As a general matter, when reasonable alternatives exist to obtain services, it could be hard to force individuals to do so. It suggests that nobody has the right to live a life guided by faith, and it's at best a close call. Yet, if reasonable alternatives do NOT exist, individuals deprived of the services are harmed. The more rational approach is that people conduct business in a public forum by license of some authority, a city, state or the federal government. A condition of that license needs to be that the services will be offered to the public irrespective of personal views, so long as the action itself doesn't violate law. The offering of services in compliance with such a license does not need to imply approval of life conditions that don't satisfy the dictates of a religion.

  31. Where is the danger, here in the United States ?

    Surely all reasonable men and women, could not, and would not, follow the bigoted example of a bigot, incidentally one who is only now a bigot, become so, because the Supreme Court, rightly, after decades of never considering the matter, ruled that all humans, are entitled to the protections afforded all, because of our Constitution and our Bill of Rights.

    I'm finally coming to understand that "rights", perhaps should no longer be interpreted by humans, considering bias and all the other archaic innate characteristics of humans, and that as soon as quantum science is developed enough, we should construct an "intelligent" computer, connect it to the then much advanced web, and let it make law, for all mankind.

    That would be something to see; might really wake all of us up.

  32. If we allow a business to select what customers to serve, we should demand that such business promimently displays what group(s) of customers are not welcome and why not. I, for one, would thus be able to no longer frequent businesses owned by religionists who do not accept gay people as customers. Although I would not be part of the excluded group, I would thus be able to express my displeasure and sympathize with the oppressed. From a societal perspective, allowing this to happen is not desirable as it arguably will lead to fragmentation and the formation of enclaves and ghettos.

  33. Roy, I'd be willing to bet I could conjure up some refusals-of-service in the gay part of my city were I to openly flaunt my Christianity. Would those businesses, too, be asked to put up signs?

  34. As a lawyer and a journalist you might have noted a compelling analogy. There is no question that Ms. Davis broke the law. But she broke it for a cause that is sympathetic to some. Journalists are in the practice of doing the same thing. They resist subpoenas and go to jail for contempt -- just like Ms. Davis -- because their actions are illegal. Ms. Davis illegally overextended her freedom of religion under the First Amendment. The journalists illegally overextend their freedom of speech, also under the First Amendment. Many liberals favor the journalists' cause. Many conservatives favor Ms. Davis's. As far as the law is concerned, though, both are the same and both belong in jail.

  35. No, both are not the same. There is a difference between journalists resisting subpoenas to reveal their news sources and Ms. Davis's attempt to subvert the First Amendment. Journalists are using the Constitution to defend their position against "abridging the freedom of speech, or of the press", Ms. Davis is using her religious beliefs contrary to the First Amendment's establishment clause.

  36. And whose civil rights do journalists trample on? That's the core crime that was committed. Like all good little conservatives, you're trying hard to claim victimization without understanding what crime was committed and getting confused about who it was committed against. What Ms. Davis did is no different than a restaurant refusing to serve blacks. Civil rights have been violated, and that is 100% intolerable in a free society. Apparently it's OK in your little worldview. What kind of lawyer do you claim to be, anyway?

  37. Except that the Constitution specifically prohibits any laws which restrict freedom of speech from being passed. With religion, conflicting clauses promote liberty with respect to religion, but restrict government involvement or endorsement of any religion. If one chooses to work for government, one pledges to uphold the establishment clause. Religious citizens who work for government may be allowed some reasonable accommodations (time off for religious holidays, etc). They do not have the option to exercise their religion in such a manner as to restrict the rights of others. Free exercise of religion obviously doesn't exempt anyone from adhering to the laws of civil society. One cannot steal from, murder, or assault one's neighbor with religious justification. History is full of examples of such religious justification. The religion clauses of the Constitution were designed to prevent tyranny by any religion, and to prevent the formation of warring religious factions.

  38. We are heading down the wrong path. Religious accommodation cannot mean that some people can refuse to follow neutral non-discriminatory laws because of their beliefs. That is the government establishing religion, exactly the opposite of what the first amendment means.

    The Supreme Court made a terrible mistake in Hobby Lobby - actually determining that a stated religious belief was legitimate and that it trumped the law. That has given wings to this issue and I sure hope they walk it back. It means that courts can determine what is a religious belief or not and that should be terrifying to everyone. No gov't body should have any say in that. I do believe in some life and death circumstances or extremely important issues, civil disobedience is called for. But, like Thoreau, who was angry when someone paid his fine, she should have wanted to stay in jail, if she wants to be genuine.

    What is a shame is that religious people who support this movement do not recognize what Madison explained. It hurts not just government but also religion. Because it can never be done even-handedly. Some religion will win, some lose.

    I happen to be for same sex marriage, but against Obamacare. It doesn't matter to me. Both are the law and both must be upheld so long as they are so deemed or we lose a critical aspect of our system - a government of laws and not men.

  39. "What is a shame is that religious people who support this movement do not recognize what Madison explained."

    Thankfully many, if not most, of us don't. I absolutely cringed over each successive denial by Ms. Davis. She earned her fate.

  40. Greenhouse's column put me off right form the outset with her reference to the amount Mr. and Mrs. Staver are making as a clearly biased presentation made to impugn their sincerity or their faith based on what she perceives as an excessive salary. The old liberal canard that sincerity is suspect when some one is enriching themselves but some how does not pertain when it is the leaders of not-for-profits, arts organizations and colleges/universities making excessive pay. Talk about double standards.

  41. Maybe it's noticeable that making obscene amounts of money peddling an invisible product is suspect.

  42. Let's be clear they mean "freedom from law" in the name of
    religious freedom.
    We are not a theocracy.
    Kim Davis violated her oath of office. Period.

  43. Ms Greenhouse remains incapable of fairness and acts as the legal muse for the NYT ED Board. She misreads Ms. Davis and Liberty Counsel. Ms. Davis is still not issuing licenses although someone in her office is. A very foolhardy judge put this 50 year old woman in jail and the progressives went bonkers displaying a virulence and hatred worthy of the craziest fanatic. Like the fanatics they are, they demanded her resignation and banishment from public life. The ayatollahs have nothing on these progressives. Well Kim refused, fought and kept her job, became a hero among Christians and taught them to fight for their rights against bully's like the NYT.

    Now, the Liberty Counsel is a very busy group because there is a lot of Christian persecution here and abroad. And now, the Christans are fighting back. You see, they have political power too and they are angry. The Liberty Counsel is making it possible to sue in court. And they will. So, I would figure out reasonable accommodations for these folks and would rethink the NYTimes inspired "silence and banishment punishment" on gay rights blasphemers. It's the new fascism and the NYT is advocating it. It's not going to work and is creating a real backlash. If you doubt it, watch the Republicans and notice the silence from Democrats.

  44. Baloney. Christians, especially the more fanatical ones, are still claiming they're being thrown to lions, either by Roman emperors or secular humanists. The former didn't happen and the latter is not happening now.
    Almost every governor, senator, and representative, as well as president, is
    a Christian. Most members of the Supreme Court are Christian. Most people
    in the country are Christian. So who's doing the persecuting? It's just another canard to keep the faithful, well, faithful. And to keep that tax exempt status intact and the collection baskets full.

  45. About twenty years ago, I spoke with an anti-gay "crusader" in our state and I called his group of evangelicals the "American Taliban." He became very angry at this and started in with the threats of a "backlash" should we gays keep fighting for our rights. So here we are, twenty years later, with ENDA (in our state anyway) and marriage legal all across the nation. So your "backlash" talk is hollow.

  46. "all they have to do is write a letter to the Secretary of Health and Human Services asserting their religious objection" Gee - all they have to do. ISIL will spare the lives of Christians in Syria - all they have to do is declare their allegiance to Allah. Jews in past Spain could have remained - all they had to do was swear their conversion to Christ.

    Ms. Greenhouse knows - should know - from history that there is no such thing as "all they have to do" from a government entity that doesn't infringe on an individual's liberty.

  47. Thank you Ms. Greenhouse; Religious rights as practiced by conservative and mandated by the five Republican on the Supreme court, and civil rights is like oil and water. What the religious right and some conservatives are trying to mandate, is unAmericna and against the Constitution. I just read an AP article about Arizona Republicans who passed a law that says "only christian prayers" are allowed in meetings.

    In Coolidge , Arizona, the town council voted 4 to 2 to only allow christian prayers before meetings. This anti Constitution fervor can be laid at the door of the five Republcians on the court. These folks are going to continue to push the envelope to the extreme, to the detriment of the country. Religion was also used to justify slavery, and Republcians are using it to justify discrimination.

    http://news.yahoo.com/arizona-council-moves-toward-allowing-only-christi...

  48. About the same time as the issue in Kentucky arose there was another case, a flight attendant was penalised for refusing to serve alcohol because of religious objections. Some Christian denominations reject alcohol as do the Mormons and Muslims. These are strongly held beliefs Given the proliferation of different religious beliefs it soon becomes impractical to accommodate them.

    A few years ago there was an interesting situation in Belgium. Parliament voted to allow abortion but the King, a devout Catholic, was opposed. The King temporarily withdrew and declared a regency so he did not have to sign the legislation.

  49. First, the easy one - the public officer: Let's do a thought experiment. Assume that a Moslem is elected county clerk, and he announces that he will not issue any liquor licenses. A Hindu is becomes the health commissioner and announces that she will not license any restaurant serving meat. A Jewish zoning officer refuses to approve a McDonalds because they serve non-kosher food.

    There is a real tension for the private sector. To resolve this, we should define what occupations and businesses are, to use the old term, "common", or to use the newer term, provide "public accommodations." Restaurants, hotels, and pharmacies - clearly yes. Florists and photographers - I would say not.

    As Linda says clearly, the First Amendment has two religious clauses, and one person's "free exercise" may well be to another an "establishment." The better way to approach this is not through the law, but, perhaps ironically, through religion, which teaches that all persons, of whatever race, creed, color, gender, gender preference, etc., are all made in the image of God, are all part of Creation, and must all be treated with equal respect.

  50. Due to outright lies by many in the GOP, conservative columnists and TV outlets, I believe some Americans have become confused about what "religious liberty" and free exercise of their religion actually means. They think the founders were Christian, and they think the nation was meant to be a Christian nation. Untrue. The only thing the first amendment guarantees is that the government cannot interfere with people's choice or ability to worship. But once those believers step into the public square, either as a government official or as someone operating a business open to the public, that religious choice takes a back seat. Ask the most fervent supporter of "religious liberty" if they think it is ok for a Muslim male to refuse to serve women not wearing a hijab and see how much support they have for religious "liberty" then.

  51. Dream on, Linda. Those right to life people are never going to just quietly fade away. And the government will continue to appease them. The Kim Davis situation was different in that she, indeed had to provide marriage licenses as the law dictates.

  52. The claim of religious pre-eminence over law should frighten everyone. What that means is illustrated by ISIS, by Saudi Arabia, by the Taliban and Al Qaeda. Sharia law is what these ignorant fanatics want to impose on America and it is time that they were held accountable, be stripped of the tax exempt status, pilloried and jailed for all crimes that they commit or that are committed in their names. The First Amendment is supposed to protect us from government that establishes religion. Tolerating religious dogma in our government is a failure to protect us from Sharia/Inquisition intolerance and threatens all of the freedoms that some religious group wants to force on us. $300K is quite a bit of money for a charity. Run a poll. How many Americans think that tax exempt organizations should be permitted to pay a nickel above the median wage? Let's find out. How many Americans don't want to pay taxes to subsidize corporations, or provide tax exemptions to vast real estate holdings, or wage war in the Middle East? Let's find that out.

  53. I, and when, a public official or anyone decides not to uphold the law of the land, that is where democracy begins to break down and chaos begins to replace it. There are many who argue that everything President Obama does breaks the law. Heck, he is not even an American in the eyes of some, so he is breaking the law.

  54. That's why the no government band are just raving anarchists - wearing pearls and smirks and for a couple of decades no one reacted. Maybe we're starting to see where their chaos is leading us (see the debate coverage).

  55. What disturbs me most in the all the righteous hand-wringing by evangelicals is that all, ALL, are only cafeteria Christians, picking and choosing which virtues, which Bible verses, which social causes to support or rail against.

    Someone on social media recently suggested that there should be new reality TV show where outspoken members of the Religious Right are forced to spend a year living by every one of the retrograde Biblical incantations that they claim is "God-given."

    I'll sign back up for cable to watch that!

  56. Yes, except for the Duggars (or what ever their name is) most of the right wingers who object to Planned Parenthood and birth control only have a few children - someone needs to check into this pronto!

  57. The writer A. J. Jacobs did this, and published his experiences as "The Year of Living Biblically: One Man's Humble Quest to Follow the Bible as Literally as Possible."

    Among his findings: "I found that fundamentalists may claim to take the Bible literally, but they actually just pick and choose certain rules to follow."

  58. When watching Ms. Davis, Liberty Counsel at her side, announce her convoluted argument about accommodation on television, I was struck by the notion that her attorney had changed the core argument from one of freedom of conscience to one of state's rights. Ms. Davis claimed that unless and until the Kentucky statute was abolished or reworded, signing marriage licenses for same sex couples was illegal in Kentucky. In other words, it didn't matter what her own personal convictions were but what the state law was. Not a winning argument at all.

  59. Kim Davis's behavior is unacceptable.

    But at least it can be said of her behavior, that when she first took office, gay marriage was not allowed. However impermissible, at least she did not take to doing something never before permitted to her.

    In contrast, states and cities across the country have made themselves "sanctuary cities" that obstruct federal immigration law. And now they are aided and abetted by the president himself, who took an oath to uphold and enforce the laws passed by Congress, laws including the immigration laws.

    Is she really such an outlier that our first attention should be focused on her?

  60. Subtle difference between the two scenarios (gay marriage and immigration). If a state law, like a gay marriage ban, is found to be unconstitutional, it cannot stand. This means that the states have an obligation to refrain from violating the civil rights of any citizen. So when Kim Davis, a representative (albeit a minor one) began denying gay couples a constitutionally recognized right to be legally married, the result was inevitable from a purely legal standpoint. The KEY here, is that what we are discussing with Kim Davis is not the enforcement of a law passed by Congress, but a constitutional violation. If Kim Davis had been a Kentucky Forest Ranger, let's say, refusing to enforce a federal law enacted by Congress (not a civil right guaranteed by the Constitution), the state itself would have to order her to comply because the federal government has no power to make a state official enforce a purely federal law. Looking at immigration, if the federal government passes laws mandating documentation, ID checks, detention, or deportation, that's their right (just like they could prohibit all campfires in national parks if they want), but they CAN'T legally make STATE police do all those things. That's called commandeering and it's (yep) unconstitutional. They'd need the INS. But a state cannot allow a citizen's constitutional rights to be violated by one of their representatives, with regards to gay marriage, Kim Davis was destined for failure in her protests.

  61. One cannot always tell the direction of tipping points. In the USA, on a national level, there has historically been a general March towards more tolerance and general social equality (not the same as freedom--itself not a uniform concept, as already implied). On state levels, this has not always been the case, and if we look at recent trends following Brown v. Board of Ed, things can be disheartening.

    I hope some short-term (so far), international anti-democratic trends begin to reverse: http://www.nytimes.com/2015/09/15/opinion/across-the-globe-a-growing-dis... .

    On the other hand, international trends advancing the cause of gay marriage do go along with Ms. Greenhouse's optimism--a place where I'd rather be. This will take much work to sustain.

  62. Ms. Greenhouse, it seems to me that Davis was using her state offfice to deny the federally protected right to marry to certain people -- gay couples. A section 1983 violation perhaps?

  63. Thank you for fleshing out the legal nexus of this issue. "When does government solicitude for religious exercise cross the line into establishment? When does policing of the Establishment Clause’s prohibition go too far and stifle free exercise?"

    In the Davis situation, I have never understood how one individual in a government capacity can use her own religious lens to refuse carrying out a benign legal process like issuing marriage licenses. I say benign because it harms no one to issue licenses to same sex couples.

    I may be wrong about this, but It seems to me, as someone who has no legal training beyond contract basics, that Davis is crossing the line between "free exercise" and establishment of religion.

    She has an "obligation" as a public official for the community good to carry out benign laws that she personally may disagree with. When she was voted into office, the election wasn't a referendum on her establishment of a religiously based office and use a religious litmus test on which laws to carry out, but to carry out all laws.

  64. "...the election wasn't a referendum on her establishment of a religiously based office and use a religious litmus test on which laws to carry out, but to carry out all laws."

    Maybe. But what happens when a law changes after the fact and it conflicts with your moral/religious convictions or sense of what's right and wrong? What is the best way to respond on an individual level and as an American? When should someone resign? Fight? Take the consequences? Acquiesce? History shows that governments (ours included) can pass, enact, and repeal "bad" laws. It's folly to assert that elected officials can't or shouldn't act on their own principles and convictions. But of course they should be prepared for the consequences and repercussions. Like abortion, the gay marriage debate isn't over just because the judicial branch "made" it the law. We'll see how time judges Ms. Davis' decisions.

  65. What I find odious about this whole episode is that this woman was arrested and perp walked because she had the audacity to defy Justice Anthony Kennedy's re-write of 5000 years of natural law as well as the Constitution.

    The SC does not make law. KY had no mechanism to do what Anthony Kennedy said what now must be done.

    This woman asked her governor since January (as she had an inkling that Kennedy's decree was coming down the pike) to accommodate her religious convictions: Take her name off of the marriage licenses. Substitute the governor's name...problem solved. But no. It fell on deaf ears.

    Here's a solution: Let the federal government, in states where the people voted to retain traditional marriages, issues marriage licenses for homosexual couples.

    So the irony here is that this woman, who is a Democrat, was arrested and jailed by an ostensibly Republican judge. A W appointment. So here's yet another reason why we don't need another Bush in office

  66. Cjmesq0, people get arrested and perp walked when they fail to obey the law, and make a big deal out of doing so. Justice Kennedy and the SCOTUS are not obligated to obey any other authority than the Constitution of the United States. Doubly so for any particular interpretation of what "Natural Law" might be, whether it be offered by the Pope or Charles Darwin. And, states' rights cannot and do not trump the fundamental rights afforded by the citizens of the US. No one told Davis to stop believing whatever she wanted. The courts did say someone who serves the people as an official must serve them all equally. Her blatant refusal led to her incarceration.

  67. The perp walk, as you call it, was orchestrated by Liberty Counsel for the PR value to Kim Davis and her future as a right wing super star and speech giver.

    Her religious convictions can be "accommodated" by choosing another line of work.

    I see no irony in the political parties of the folks involved. What I see is a judge carrying out the law without taking into account political ideology. That's not irony. That's simply the way it is supposed to work.

  68. The Supreme Court is the final arbiter of what passes constitutional muster, and its ruling that laws in KY and other states banning same gender marriage were unconstitutional is the final say in the matter unless opponents can get 38 states to ratify a constitutional amendment overturning it (get back to us when you've met that bar). And Kentucky does have the "mechanism" to comply with this decision: issue the licenses to same gender couples, just as it's been doing for heterosexual couples.

  69. What about "no law" does the Supreme Court and Congress not understand when it comes to Congress giving respect to people's narcissistic fantasies about the wishes and wraths of an imaginary personage residing on the far side of the sky?

  70. If I get a job in a shoe store and then refuse to sell leather shoes because my religion requires that I respect all animals, I don't think I'd get a very sympathetic hearing. Nor should I. A store-clerk sells the products of the store. A county secretary dispenses forms and advice according to current law.

    Too many Americans become confused when religion is in question. But then they become confused when told to be confused by their favorite "news" source.

    We're looking at the continued fragmentation of American society. Fears of the internal enemy have replaced fears of enemies abroad. Maybe we need Putin to be a bit more belligerent.

  71. Would the Liberty Counsel rush to support a Muslim man who worked at the DVM and refused to issue driver's licenses to women?

  72. The problem with supplying a health plan when you do not want to supply birth control is easy. Just give the employees a direct money benefit and deal with one of the private exchanges where employees can buy on their own plan. It is the same as paying them a salary and they go out an buy contraceptives from the pharmacy. It is their money and they spend it the way they want. If your employees do not act as you want them to in spending a benefit you give you are not complicit as you have no control. Problem solved.

    A public employee who does not do their job or feels their job is no longer doable should resign or be impeached. Problem solved.

  73. All this talk about religious freedom has me flummoxed. Perhaps I'm not that good a student of politics, but It seems abundantly clear to me that your religious rights end at the line where my civil rights begin. I would like to add, "end of story," but apparently I can't, at least not yet. Strange days indeed.

  74. We could solve the US problem of ever encroaching religiosity into every facet of civic life, if we could just summon the collective moral courage to eliminate tax exempt status for religious organizations. It would take time to achieve, and those sacred cows would not be willing to go out to pasture without a hurculean effort, but we would be a better society in the end if we could do so. Religion should be a solely private choice, in my opinion, and not promoted through forced taxpayer subsidization.

  75. We should be thankful for the Kim Davis case because it helped expose religious bigotry 'freedom' as the scourge of delusional lawlessness that it is.

    It helped expose the fact this is not the United States of Jesus, no matter how badly some people want it to be.

    It also helped expose how clueless many Americans are about the separation of church and estate principle.

    Freedom 'from' religion is arguably more important than the freedom 'of' religion.

    Religion is ultimately a personal hobby.

    I don't demand that civil law conform to my personal obsession and devotion to the New York Mets, nor should Christians demand civil law conform with their religious ruminations.

  76. Ms. Davis should be in jail for contempt of court. She is a dangerous religious fanatic. How could she single handedly deny the whole country the right to marry on the basis of a higher order of her specific God. Can you imagine every citizen with his/her own tailored god dictate that their God is the only one that matters? Insanity and lunacy !. We should send her to the Middle East to see what other Gods dictate.

  77. There are many people in public service that want to insert their faith into their jobs. I am a retired public school teacher that taught in a small rural school. I often argued with other teachers that some of their faith views were not appropriate in the classroom. Demonstrating a caring and loving attitude was good, but Witnessing for Christ and Proselytizing and leading prayer was not. Unfortunately it happens too often.

  78. Excellent column, as usual. It's a shame that our founding fathers decided to include the "free exercise" clause at all, giving important but unwarranted rights to superstitious nonsense (when many of them had realized - but couldn't necessarily declare in clearest terms - what nonsense it actually was). Consider it a political concession then made to the majority of Americans who still considered religion to be important.

    We're not free of that yet! We haven't had a single president who declines to rely on "faith" (i.e., the absence of evidence), and Republican candidates (sadly, Democrats too) are just awash in it. One final contribution that President Obama could make, on the last day of his term, is to reflect publicly with regret on how he (and so many others) have had to pretend to believe in the existence of supernatural powers so that the backward electorate could feel more comfortable voting for them.

  79. "Even though the two women, one Catholic and one Protestant, asserted that they would never use the objectionable birth control products, Judge Leon accepted their argument that they should not have to be part of an employee health plan that enabled others to obtain them." In practical terms, what does this mean? Do the two litigants get their own health insurance plan? Do they not participate in their employee health insurance plan? Do they have the ability to impact the health insurance of other employees?

  80. Not too many years ago there was a group of Somali cabbies in the Twin Cities who would not give blind people with dogs rides and people who had been drinking rides. This was based on their religious beliefs. Most people reacted with disdain. We need to realize that what might feel good to us on a particular issue runs contrary to the big picture, people imposing their religion on others. Kim Davis could have quit. The cabbies could have quit. Both wanted to keep their jobs and impose their views. As an aside, the judge was goofy for throwing Davis in jail. It was overreach and brought her a great deal of attention.

  81. As an irreligious person, I believe that in a truly free society religion and everything civil do not mix. The Clerk in Rowan Co., Ky., had no constitutional right to deny issue of marriage licenses to persons of the same gender, even if many admire her stand. We live in a country where the state is separated from the church, but where there is a National Cathedral and a prayer at the opening of the session of Congress. If the society allows freedom of speech in all political issues, the same freedom should be accorded all the monotheistic, polytheistic or animistic religions, as irrational as their practices may seem.

  82. The religious right does not have and never has had any interest in religious freedom or liberty. What it really wants is evangelical Christian theocracy and special rights for evangelicals that itnwould never countenance giving to Muslims, Buddhists, Jews or Wiccans. At its heart, the religious right is an authoritarian political movement that uses the language of democracy, freedom and liberty to impose its backward views on everybody else, no different from Wahhabi clerics in Saudi Arabia or mullahs in Iran.

  83. What you've described here, Linda, seems to be the slipperiest slope in all of politics. How do we protect the rights of people to believe whatever blarney they want (and we should) while preventing adherents of divine gibberish from hijacking the national agenda?

    The discussion of official vs. non-official religious accommodations suggests that the full-blown psychotics get perks that are denied to the less delusional. So, as a nation we are hamstrung in our efforts to move ahead by those whose primary fealty is to a mystical wild guess.

    Here's a question that should be asked at a Republican debate but won't: If U.S. laws conflict with the tenets of your favorite reverie about the universe, will you enforce those laws, or will you apply a heavenly veto?

    During the Vietnam War, Conscientious Objectors were exempted from fighting and killing. However, to be granted CO status, one needed to prove that the objection wasn't one of common revulsion at adventurism but rather one dictated by one's religion. T'was ever thus.

    Religion and the Common Good are two huge, sliding plates in a tectonic formation that will continue to send shock waves. We'd like to believe that there is no real conflict between those who believe that every moment is imbued with divine magic and the rest of us who believe that reality is what it appears to be, that people like Kim Davis, for all their moral self-regard, are really rude boors who can't be bothered with the consequences of their actions.

  84. Kim Davis swore on a Bible to uphold all the duties of her office. She swore to the very God that she vaunts with such devotion that she will uphold all her official duties as a clerk signing marriage licenses for all couples qualified under the law of the land to get married. So what happened to her sworn statement? Do we not swear witnesses to testify under oath that they will tell the truth and nothing but the truth? Are witnesses sworn before God then allowed to select what they regard as their own personal truth or do they have a duty to the legal system that is governed by the laws of the land? Does God forgive their deliberate lies after they have sworn to tell "the" truth? Let us say a witness against Kim Davis is sworn under oath to give true testimony decides that because they don't like her politics they have a right to lie and even fabricate facts that condemn her? How would she feel about that? Would she celebrate this witness' right to religious freedom because they don't like her point of view? Could a gay Christian witness be permitted to fabricate facts against her because of her religious position? Does not a gay Christian have a right to deny her her religious freedom to deny gays marriage licenses? What if in a court of law a gay Christian swore to tell the truth but then decided to lie because of a perception that the lie conforms better to religious beliefs? She may be "hoisted by her own petard" at some point.

  85. The benighted NC legislature passed legislation over the governor's veto, allowing any magistrate in the state to opt out of issuing all marriage licenses if he or she has objections on religious grounds to issuing a license for a same sex marriage.

    This is the next tactic of the homophobic right to thwart gay marriages after the Davis ploy failed and should meet the same fate in federal court.

  86. "For all the reasons to object to a public policy — ideological, conscience-based, a personal preference strongly held — should claims based on religion receive more respect than the others?"

    Of course not. It's an indictment of American culture that the question even has to be asked.

  87. The notion that the Congress should make laws to respect the faith this person says she took up three years ago for the sake of gaining life after death is absolutely ridiculous.

  88. Right. But this Congress is over 90% so-called Christian.

  89. Organized religion has been involved in more murder, torture, imprisonment, abuse, and discrimination that any political institution ever has. For one I refuse to put my spiritual health in the hands of people who believed more in superstitions, myths, and legends with little understanding of the natural world around them. Instead of religion we should embrace the enlightenment that freed the human mind from the shackles of religious dogma.

  90. Of course Ms. Davis was bound to uphold the law or resign. But what of law officials in sanctuary cities who refuse to obey arrest and/or deportation orders of those who break immigration (and other) laws?

  91. The obscenity of allowing an allegedly-"religious" organization to profit its operators 300K per year, TAX FREE, must be stopped. That is stomach-turning. People like this are vampires. Their only religion is the worship of sucking money out of suffering. Kim Davis was a very willing victim, but she was a victim nonetheless. They used her up and will spit her out when she stops being profitable. Meanwhile, the "religious" tax-free profits keep rolling in, fueled by the fires of fear and hatred.

  92. The problem is that, when Kim Davis is at work, she is not acting in the capacity of a citizen with civil rights; she is acting (and earning wages) in the capacity of a government agent -- an agency which confers explicit powers over citizens, balanced by explicit responsibilities to those citizens.

    Mrs. Davis is enjoying her government powers while flouting the government responsibilities that she vowed to perform.

    In fact, not only did Mrs. Davis take that all-important oath (or pledge, as the case may be), but she also made the following statement upon winning the election that placed her in office:

    "My words can never express the appreciation but I promise to each and every one that I will be the very best working clerk that I can be and will be a good steward of their tax dollars and follow the statutes of this office to the letter."

    Kim Davis lied. She is misusing her religion to justify her lie. She is abusing her authority to impose her beliefs on others.

    Holey, holey, holey.

  93. The Kim Davis case is not about religion because, while she and her lawyers said it was about religion, it was merely one of a myriad of requirements in a Christian version of the bible that they were pointing at while they ignored many others.

    They had no problem with Davis's multiple marriages, although their bible makes clear in several places that Davis is an adulteress. Neither does Ms. Davis demand that people be allowed to sell their daughters into slavery or that people who work on the sabbath be executed or that people must be allowed to stone others for planting different crops next to each other ot that people be burned for wearing clothes made of mixed fibers.

    Their religion begins and ends with bigotry against LGBT people. This is not religion at all, just hate asking to excused as religion.

  94. Fortunately there are plenty of Christians that support Q rights. You'll see 'em marching in our Portland, OR Pride parade each year. I think bigots express their bigotry whenever they think they can get away with it.

  95. The bigotry you allege is not restricted to one religion. Most major religions have it - Christians, Muslims, Hindus. The issue is religion itself, and the lack of education in science, history and the letters.
    Note, the well-read and educated (which does not mean some 'reverend" degree at some Bible School, or that taken to become a Muslim mullah) do not support this.

  96. We all saw that clip from the West Wing too.

  97. She took an oath to uphold the laws of Kentucky and to uphold the Constitution PERIOD! If she can't do what she swore to do then she should find another job. Kentucky could expedite her job search by firing her.

  98. I get a real kick out of "rights", as they are currently used by other human beings, to enact laws, rules, and regulations, to allow, and or prohibit, whether another human, or groups of humans, may engage in, or not engage in, activities, that may be contrary to their long held, often multi-generational, and, until very recently, constitutionally protected beliefs.

    Incidentally, I believe we all must obey the law, law that equally applies to, and is applied to all citizens and residents of the United States, but laws are created by humans, none of whom are infallible, consequently laws are repealed from time.

    With that out of the way, I'm simply making the forgoing statements to set the stage for the reality that the so called "law of the land", is not always the law of the land, as has often been shown, since the nation was born.

    Laws are created, generally to serve and protect the people as a whole, but often, as well, to enslave and subjugate.

    See some Supreme Court decisions, that were overturned ...

    http://money.howstuffworks.com/10-overturned-supreme-court-cases.htm#pag...

  99. "March for Life sued the administration to be relieved of having to cover contraceptives that IT BELIEVES cause what IT CONSIDERS to be abortions"

    We cannot get the law right until the science is right. When religion trumps science in defining basic terms we're sinking to the level of the Salem witch trials.

  100. America prides itself in being "the melting pot of the world", but along with the merging of ethnicity comes the importation of religion. Some estimates count over four thousand different religions in the world. Try to imagine a country in which millions of devout individuals interpret their job according to their religious beliefs. That is the point at which "religious freedom" becomes anarchy.

  101. In this regard, I always recall the man who stabbed several passengers on the Staten Island Ferry and when apprehended told the police that "God told me to do that."

    If we followed "Liberty Counsel," that would have been the end of the matter==no arrest, no treatment, no public safety. No one's "god" trumps our civilization.

  102. I wish that politicians who belong to the Christian faith would serve as exemplars for hate filled people like Ms. Davis who need to rejoice in Jesus' love for the oppressed rather than the identify with the Roman crusaders. In fact, if Ms. Davis were to do some historical research she might find that the myth surrounding Jesus' immaculate birth to the virgin Mary was similar to the Egyptian myth of Horus as well as the Hindis & Buddhists. In truth, as defined in the book, "Hermaphrodites, Gynomorphs and Jesus: She-Male Gods and the Roots of Gender Intolerance", biological sexual dymorphism is accentuated by cultural pressure rather than biological destiny. In fact, even in Jesus' era, the 10% of the population that were born homosexual was similar to that of modern times although repressed in certain cultures while celebrated in others. In fact, the Greek and Roman cradles of civilization were teeming with homo and bisexuals, who were free to express their sexuality without religious constraint since Gods like Bacchus and Dionysus, encouraged love of the physical body & pleasure. In fact, in Luke 4:18, the idea of oppressing people is considered sacrilegious & inhumane since Jesus believed that “The Spirit of the Lord is on me because he has anointed me to proclaim good news to the poor. He has sent me to proclaim freedom for the prisoners and..to set the oppressed free." If anything a true Christian fights for the oppressed rather than the distorted other way around.

  103. I knew some of this information was around, but forgot exact terminology, etc. Thanks for the info. Need to do some studying myself.

  104. Yes, I agree that Ms. Davis is out of line -- much as I thought that then SF mayor Gavin Newsom was out of line when he ordered that City Hall issue marriage licenses to gays (even though I favor that policy) when that was still against the law.

    Of course Greenhouse did not scold Newsom. She too quickly forgets that the rule of law applies to all, not just Davis.

  105. It seems to me that, First Amendment complexities aside, the public and the courts tend to decide these cases more or less as they would if religion were not involved.

    Private worship is protected because, in general, free assembly and free thought are protected.

    Religious clothing is protected because, in general, Americans think you should be allowed to wear what you want.

    Employment issues and the rights of private companies to choose customers are both tightly contested, because in general the valid criteria by which employers choose whom to hire, and companies choose whom to work with, are vague.

    Government employees are expected to act like government employees.

    The specific protections accorded by "freedom of religious exercise" seem to be a relatively minor factor in all of these cases, although much discussed and certainly not completely irrelevant.

    The one situation where freedom of religious exercise WOULD be a really significant factor has barely reached public scrutiny. Specifically, the right of Muslim organizations to organize and undertake religious activities without fear of governmental interference.

    But this only proves the principle that both the public and the government tend to ignore the specific protections of religious exercise, and revert to other principles. In this case, since investigations of Muslim organizations continue to turn up suspicious behavior and potentially avert public crises, no one raises a "religious freedom" argument

  106. What if Kim had cited the cosmic teapot as her commanding authority? I for one would have taken her just as seriously.

  107. As always, Ms. Greenhouse provides much food for thought. This particular column highlights the dilemma created by the promise of individual freedom in a diverse society. How do we protect the freedom of one individual, Kim Davis, for example, without violating that of the people who need to obtain a license from her?

    The imperfect solution discussed by Ms. Greenhouse and several readers is to distinguish between Davis's private views and her responsibility as a government official. Since her official duties do not commit her to agree with the laws she has sworn to uphold, her personal values are not at risk in executing those laws.

    The difficulty arises from Davis's belief that God will not accept this legalistic distinction. Her solution of a legal accomodation that would exempt her from the offensive duties, however, violates the democratic principle that government officials must serve all the people.

    To break the impasse someone is going to have to sacrifice some of his freedom. Ms. Davis voluntarily holds a position whose duties she has sworn to perform. The gay couples are simply seeking the protection of the laws which Davis is bound to enforce. If her conscience forbids her to do her job, then resignation is the only honorable recourse open to her. Her refusal to see this indicates an unwillingness to understand the compromises that the protection of freedom in a diverse society requires.

  108. This is not a good place to bring this up, but at some point the Nuremberg principle must come up. That principle said that people must disobey orders that they consider unethical. This is really a silly case. Superiors could have easily solved it before it ever became public. But the principle that one must obey a law that one considers unethical is shakier than people seem to admit

  109. One must refuse to follow unethical orders, but one may also be punished for doing so. The Nuremberg principle is quite clear that using one's conscience to avoid committing crimes against humanity (and marriage between two consenting adults isn't that) is to be expected and mandated. It does NOT say that this comes with no consequences whatsoever, nor does it refer to things that are objectively ethical and do no harm. The Nuremberg principle is about reducing harm, not about following arbitrary rules.

  110. Larry--you hit the target head-on !! And, with humor at absurdity ! Those who consider themselves religious ( especially the fundamentalists ) are by far the group that does not understand the meaning of church/state separation

  111. It's worse: the fundamentalists DO understand the meaning of separation of church/state. They refuse to recognize it. THAT is the problem.

  112. Ms. Davis was elected to a public office. I assume there was a swearing in ceremony during which she placed her hand on a bible, and I assume the oath she swore was to uphold the laws and ended with the words "So help me God".
    Why is she not bothered by her refusal to carry out the promise she made to the God she believes in so deeply? isn't lying to God, or bearing false witness, a sin? Wouldn't the right course of action for her be to resign this position that requires her to commit what she perceives to be a sin, rather than committing another sin?

  113. My biggest objection to the Kim Davis case is that she not only refused to issue same-sex marriage licenses herself, she also refused to let her deputy clerks issue them. This meant that she was in effect using the Clerk's Office of Rowan County to force her religious beliefs on the general population. This is a clear case of using a government office to practice religion.

  114. I agree that Ms Davis's office has a legal duty to issue the licenses, just not by her and without her name on them! There needs to be a way for both rights to be upheld! She did not accept the elected position with the knowledge that she would be expected to violate her beliefs, so accommodations need to be made to issue them without her participation, just like they have done for "Contentious Objectors" in the Military! There have been religious accommodations made for Muslims, in Government jobs as they are given leeway for prayers and head scarves! If you give an accommodation for one person and not the other, that is called discrimination!

  115. They did, she doesn't have to issue them herself, her deputies do it.

  116. Obviously, she should resign and find another job if she is unable to obey the law.

  117. So my question is this.

    In some religions, the people being married are required to be of the same faith.

    So if i belonged to one of those religions could I refuse to issue a marriage license to those couples who do not belong to the same faith?

    Can I refuse to issue a marriage license to people of different faiths due to claiming that it is my sincerely held belief that my deity, is the one True Deity, and is the only deity that is allowed to marry people? That if people of different faiths got married I would be part of their sin?

  118. The very notion that religious liberty in America needs to be "advanced" is absurd. "In God We Trust" is on our currency, presidential addresses end with "may God bless America," "one nation under God" is part of the pledge of allegiance, and, to top it all off, our federal government in effect subsidizes religion by not taxing its property. The only religion that seems to be constantly claiming that its rights and beliefs are being trampled is the dominant one: Christianity. And, in the process, they have dangerously eroded the concept of the separation of church and state. I fear these zealots will only be satisfied when the church, meaning THEIR church, IS the state. What needs to be advanced is the freedom FROM religion.

  119. Parts of early America had theocratic government. One result was multiple executions for violations Old Testament laws (read Bradford's Of Plymouth Plantation), including witchcraft. I don't think the majority wants to go back to that.

  120. The Christian faith seems to be the dominant faith written about in the NYT (specifically the Catholic religion) and not always in a favorable way. The criticisms are unjustified and the comments by the readers are mean spirited and judgmental. If some of us feel there is a war on Christianity, we have good reason to believe this. Non-Christian religions would not tolerate this behavior on a daily basis for one second. Why should Christians have to?

  121. You forgot to mention the one religious Federal holiday--Christmas for the Christians. Sounds like establishment of religion or favoring one religion over another to me.

  122. By way of full disclosure let me confess to being an atheist - I do not believe in any form of a supreme being.
    The answer to the questions you posed, ” When does government solicitude for religious exercise cross the line into establishment? When does policing of the Establishment Clause’s prohibition go too far and stifle free exercise?", is obvious: government should do nothing to either support or inhibit religious practice and beliefs, and should interfere only when the practice and expression of religion violates the law or the civil rights of others. Freedom of religion is not the paramount right (In fact the better argument may be freedom from religion!), the Bill of Rights does not prioritize.

  123. So you are saying the religious rights stop at the church door. That is not a right but an endangerment of religious freedom. Gays rights are no more better than mine. SCOTUS said they have a right to marry. Fine. Kim Davis may be wrong because she works for the state, fine. But they have no right to say I want Christians to work my wedding. Bakers, photographers or any other including Chapels and ranches. Christians have the right to say no!. SCOTUS hasn't answered this yet. If the answer no then Christians have lost all rights. And so have you.

  124. Ben: For elected officials, religion does stop at the church door. The power granted by holding elected office can be abused if that official imposes his/her religious standards on others who may not have these same standards. In fact, Christians, under this system, retain their rights. The only "loss" as you characterize is is that of imposing one's beliefs on others. You are free to continue disliking gay people, or whatever other group, but if you're elected to office, keep your beliefs to yourself.

  125. Religion is an artificial construct that one chooses to believe in. It is neither innate like race, gender, or sexual preference; nor is it involuntary like disabilities one may sustain during life. The law in this country, while allowing you to believe and practice (within reason) as your religion dictates, requires those who perform services to the public to not discriminate on the basis of these things. You do not get to pick and choose to follow only those laws which are compatible with your religious beliefs. Believe what you want but break the law at your peril.

  126. Linda: A cogent analysis, as usual. One quibble:

    "When does government solicitude for religious exercise cross the line into establishment? When does policing of the Establishment Clause’s prohibition go too far and stifle free exercise? There is no easy or obvious answer...."

    I hope it isn't simply an indication of my own bias when I say the answer seems easier than our discourse often suggests.

    Your religious freedom involves your right to practice your religion as you understand it, not to arrange the world to bring it into line with that understanding. If contraception violates your religious beliefs, you are without question free to not use contraception. So don't. It is not a violation of your freedom of religion to be required to pay for an insurance plan under which others might be reimbursed for contraception.

    If your job requires you to certify that couples meet the legal requirements for marriage, and you judge doing that to be at odds with your religion, then you are clearly in the wrong job. Find employment that's more compatible with your beliefs. Is this all too logical?

    Almost always when people assert that their religious freedom is being violated, what they really mean is their attempt to control WHAT OTHER PEOPLE DO is being impinged. This turns the wisdom of our constitution on its head.

    http://amorpha.blogspot.com/2015/07/what-other-people-do.html

  127. Ms Davis was not trying to control what other people were doing. They were free to go elsewhere for a license. She was fully within her rights to "freely exercise" her Christian belief--to do otherwise was to obey man rather than God--something Christians are expressly prohibited from doing (Acts 5:29).

  128. Religious rights' cases are the result of laws being "asserted" over religious adherent's beliefs. There is no question that their rights are being infringed upon.. The question is whether they have a right to an accommodation.

  129. I'm waiting for a devout Catholic to refuse to issue marriage licenses to previously divorced people because of their belief in the indissolubilty of marriage, after Jesus's words "whom God has joined together, let no man put asunder." Would Huckabee and Cruz. et al show up to support that official?

  130. Or how about a Muslim clerk refusing to issue liquor licenses?

  131. How about the Jewish clerk who won't issue a marriage license to the deli owner who serves a really good ham sandwich?

  132. or withholding marriage licenses from anyone affiliated with the Red Lobster chain of restaurants?

  133. "The rally at which the just-released Ms. Davis appeared with Mike Huckabee, a candidate for the Republican presidential nomination (with another candidate, Ted Cruz, lurking off center stage) in front of a cross-waving crowd that looked an awful lot like a mob, was downright creepy."

    Indeed. All those crosses--very disturbing, even though I venerate the cross in my house of worship. Seeing them in the public square, however, sure gives me fits. And the preening pandering Huckabee and Cruz--with their willful contortions of the 1st amendment, made the whole scene a little surreal.

    If nothing else, the nonstop testing of 1st amendment boundaries does keep us vigilant. And while the intricacies of so many the legal arguments seem almost impossible to follow, the questions you raise make so much sense. In particular the ability of one person to use religious exemption as a canard to deny an entire class of people their civil rights.

    While some cases are clearly clear-cut, it's the not-so-simple ones that make me cringe because of the way that men like Huckabee and Cruz can exploit people's ignorance. I hope your right, Ms. Greenhouse, that the "Roberts court's favoring free exercise to the detriment of values of pluralism" means recalibration is round the corner--because most days that seems like the farthest thing from happening.

  134. Nicely explained, but still allowing religious interference in state's affairs...while demanding freedom of religion as a matter of faith and trying to impose a particular faith-based dogma on the rest of us. If this is not an abuse of power by any given religion, with its implicit intolerance of others, you tell me what is. Religious meddling in secular affairs, proscribed by the Constitution, is dangerous as it does not tolerate diversity nor inclusion. Why, then, exceptions?

  135. But any one can step on religious freedom as long as it isn't in church. Does free speech stop at home. Does Freedom of the press stop at the editors office no. Whether you think she is right or not she has the right to council and the right to voice her opinion.

  136. What is both offensive and truly frightening is the argument advanced by most of the Christian, evangelical-backed Republican candidates in last night's debate including Jeb Bush, Ben Carson, Chris Christie, John Kasich, and Scott Walker in addition to the aforementioned Ted Cruz and Mike Huckabee is that Christian Sharia law takes precedence over Constitutional law pronounced by our Supreme Court. We may pay lip service to our First Amendment and rail against theocracies in Iran and elsewhere, but the majority of the Republican Presidential candidates have twisted the intent allowing the "free exercise of [religion]" to promote one religion, Christian fundamentalism, over others--a clear violation of the Constitution and a blatant attempt to subject democracy to theocracy.

  137. To my knowledge there has never been any legal criteria established as to what qualifies as a religion. To pick an extreme example, is satanic worship a religion? Or "The People's Temple" run by the infamous Jim Jones? How about the religious cult that Charles Manson headed? Until some legitimate criteria is established for a religion to be legally recognized, anyone can claim anything is a tenet of their religious belief. And in doing so, they automatically obtain legal rights well beyond the bounds of reason.

    Up to now, few have exploited this soft space in our laws. But it seems religions are getting more sophisticated now, especially with such organizations as the Liberty Counsel peddling their services. And with the Roberts court having swung the pendulum so far in the direction of religious liberty, common sense demands some needed push-back.

  138. "When does government solicitude for religious exercise cross the line into establishment?"

    That's the problem, isn't it? That's the line in the sand: an individual says, "Here, but no further", and reasonable people try to find accommodation of that line.
    Great theory. Should work.
    Doesn't.
    Why?
    Because all religions that have ever existed have one commonality: They are hierarchical. From the most complex to the simplest, all religions require a hierarchy, even if it is the simple hierarchy 'g(G)od'/deity/nature is above me'.
    The problem is that 'constitutions' require 'equality'. All are equal under the agreed upon laws. That's the difference between 'Natural (God's) Law' and 'positive law', what we purport to have.

    Enter Kim Davis, an individual, an elected official, who deems 'positive law' to be inferior to her 'hierarchical law'. She has chucked 'positive law' and now demands that we respect her individual choice.... and we could and would, what would it matter?...except that she is an elected official and refuses to exercise her expected duties to the public. We are upset that she is building a hierarchy where none is needed.... or legally allowed. She has hood-winked us, pulled a fast one, is trying to get secular law to establish her own, personal religion.

    All of this can happen because there is no definition in our positive law on what religion is. That oversight, the original "accommodation" to religions, must be corrected by the Supreme Court..... now.

  139. Is the money the issue or that they chose to help with cases that get a lot of attention. The OJ lawyers do this all the time but nobody writes a derogatory article about them. The Times is again picking on Christians and their rights. They have these rights just as much as the Times has the write about them. So get over it.

  140. A business has the absolute right to serve whomever they want and refuse to serve whomever they want. They also have the right to go out of business because of their choices. As a photographer, I would want to reserve the right to refuse service to whomever I want as an independent entity. I might lose business because of it but that's my problem. A government contracted employee, however, has a legal obligation to do her job and if she feels that doing her job creates a conflict of interest, it is her obligation to step down from that job.

  141. except that's not entirely true: a business can't discriminate against people based on gender (a group in which I would also include people in same-sex relationships), religion, race, etc.

  142. I am playing devil's advocate here, I don't think it's advisable for anyone in business to discriminate against anyone.

  143. There is no inherent tension between "establishment" and"free exercise thereof".Its obvious that the government can neither support nor destroy religion, under the 1st am.. However, equal protection of all people does not come from the 1st am.. In all secular walks of life, e.g.; marriage, cake baking, car sales, home buying, medical treatment, etc.; the equal protection clauses obtain. Since upholding and protecting marriage is a secular state function, a cleric that is allowed by the state to perform a ceremony, is an agent of the state. If the cleric, as a matter of his or her religious belief will not obey the law then there should be no marriage protected by the state performed by that cleric.

  144. Note that Ms. Davis's office is now issuing the disputed licenses. Perhaps the short lesson to be learned from this is that Ms. Davis doesn't like it in Jail.

  145. Should a Democrat win the next presidential election and have the responsibility to select a candidate to fill an empty Supreme Court position, Linda Greenhouse should, in my opinion, be at or near the top of the queue. She displays every desirable characteristic of a Justice -- knowledge of the law as it exists, the intellectual power to formulate questions with regard to important Constitutional question, forbearance for the opinion of others without rancor, and overall good sense, a quality lacking in many of the Justices serving today. One could no more imagine Miss Greenhouse going through a question and answer period during a presentation to the assembled court than one could imagine Justice Thomas actually asking a question.

  146. Cjmesqo's appeal to natural law in his criticism of the Supreme Court decision raises a very serious issue. The Constitution states clearly that it is the supreme law of the land, a necessary stipulation in any democratic polity, especially one as religiously diverse as the U.S. was and is.

    The elevation of natural law above man-made law creates at least two unsolvable problems. In the first place, whose version of natural law would prevail, the Christian version, the Muslim version, or some other? Secondly, unlike human law, natural law is absolute and cannot be amended. As the needs of society change, it would be impossible to accommodate them through modification of divine decrees.

    Disputes over both of these problems would resist any solution through the normal political processes of a democracy. War would be the only recourse.
    Individuals are free to lead their own lives according to the precepts of their understanding of natural law. What they cannot do, however, is expect the state to enforce those precepts on others. That is the compromise that is required in order for religious freedom to survive.

  147. Even further; which sect of christianity? There are thousands of them. Davis is a member of the Dominion flavor. They expect ALL citizens of the US to adhere to christianity and the bible as a literal text.

  148. Linda Greenhouse, considering the tension between the First Amendment prohibition against establishment of a religion and its guarantee of the free exercise of religion, writes that as to when the prohibition goes too far and threatens the free exercise “[t]here is no easy or obvious answer.” She is right when you think only of the decisions couched in terms of weighing the two parts of the First Amendment. But what if you think of the three concepts involved?

    There is an obvious answer, if we remember three readily accepted principles, each of which has been a part of the Constitutional tradition of America from the beginning: 1) In the United States there is not and never shall be a national religion; 2) Every citizen of the United States is free to practice any religion, or none, as he or she wishes; and 3) In the United States the most important rule is that there must always be a separation of church and state -- religion and government.

    Let’s not make the separation of church and state into some sort of vague, undefinable idea which is vulnerable to completely subjective interpretation. This is an area where we do not need to use Potter Stewart’s default definition of pornography: “I know it when I see it.”

  149. The Kim Davis flap is an overt and obvious distortion of our legal system to any reasonably educated American. What seems scary to me is that this nonsense received all that attention because USA has deteriorated to become such an anti-intellectual, reactionary mess. The founders of this country were the elites of their time and distrusted the masses. Now it's just the reverse: we have elected boorish, selfish, rednecks to office who want to dismantle the constitution and the bill of rights.

  150. Kim Davis is a government employee. In America when a person works for the government they are supposed to serve the people regardless of religion, skin color, ethnicity, sexual preference, gender, etc. If she cannot do that she is free to resign and start her own company or find another job. However, she does not have the option of saying she will not issue legal marriage licenses.

  151. The validity of your point notwithstanding, Davis is an elected public official, not simply a public employee. The obligation to evenhandedly execute the duties of her position is all the more important for the very existence of a pluralistic society.

  152. Linda doesn't mention that state Religious Freedom and Restoration Acts have (unfortunately to me too) given wider latitude for people to make religious exemption claims than those based on the federal Free Exercise Clause. Kim Davis could still prevail on the state level with a state RFRA law.

    Those state laws are modeled on the unfortunate federal RFRA (sponsored by Chuck Schumer and Ted Kennedy!) of 1993 that superseded a 1990 Supreme Court case. That case stated that criminal laws burdening free exercise are constitutional if they are ''generally applicable'' and when they apply across the board regardless of the religious motivation of the prohibited conduct, and are ''not specifically directed at . . . religious practices.'' Who wrote that case? Justice Scalia!

  153. Thank you, Bob Wilson, for the interesting background. Let no one ever say that Justice Scalia fails to plan ahead. A quarter century is a long time to wait for a seed of bias favoring conservative Christian beliefs to bear fruit. The optimism of Linda Greenhouse's last paragraph may be premature.

  154. Again, I love Linda Greenhouse and have fond memories of her guest lecture in my American Judiciary class at Harvard's Kennedy School of Government.

    But she's wrong. Again.

    To accept the premise of Greenhouse's position, you are forced to adopt the liberal narrative that any preference, respect or acknowledgement that Christians are human beings who should get a split second of respect instantly means the courts are granting some sort of endless deference.

    In the Obama Era, Americans who worship God are the terrorists, and those who worship Obama or violently oppose God are given a position of unearned preeminence by a court that has violently and radically swung to the political left.

    Can you name anyone in the Obama WH that actually respects Christianity? How about an Obama supporter? I don't mean for the sake of a 60 second poll where people will "claim" to be Christian to sound good in their community, I mean a full polygraph test.

    Obama doesn't respect God or the Christian faith, that is clearly a litmus test for his judicial picks, so why are we surprised when a White woman in Kentucky wanting to maintain her Christian beliefs is bedeviled, mocked and ridiculed?

    When we can find an Obama liberal capable of showing a split second of respect to the Christian faith the laws and court rulings will follow. Until then, make sure you say "Happy Holidays" this December.

  155. I think a lot of people in the WH respect Christianity, but they don't give it the cultural supremacy that is demanded by the Orthodox. There are far more religious people in this country than the Evangelical or the Orthodox. And these majority of reasonable people say, along with the atheists: what does anyone's religious beliefs have to do with anyone else's religious beliefs or civil rights?

  156. Perhaps you skipped the class on separation of church and state? In fact Christianity should not receive "a split second of respect" in the courts or any other place in our public square. Christianity, and every other religion, should be ignored in public life, exactly the same way that race should not be a factor under the law.

  157. DC, you're confused. She doesn't want to "maintain her Christian beliefs." She wants to force others to comply with her beliefs.
    This is a big difference, which you should try to understand.
    Also, as far as her trying to maintain her beliefs, maybe, as another commentator noted, she should pay attention to the log in her own eye and consider how Christian someone married four times really is.
    And it doesn't matter whether Obama "respects Christianity" although from my viewpoint, he not only respects it, he is one. Under the Constitution, there cannot be a religious test for office. And by the way, do you think Obama instructed the Bush judge to jail the woman? As noted, you're (very) confused.

  158. For as much as I would like to find support in the claim that religious accommodations are the same thing as establishing a religion (including Sharia Law), I just can't.

    Accommodations of conscience are made to individuals ... not to the polity as a whole.

    When that individual is a corporation, the number of employees affected may indeed make the act one of establishment. Likewise, when the individual is a public servant -- and sole representative -- for an entire population of citizens, the act may also be one of establishment.

    Those extremes aside, the US does indeed need a legal and rational means for people with objections of conscience or religion to seek personal accommodations made by people with sufficient knowledge to recognize the difference between "free exercise" and "establishment".

  159. The Kim Davis case is not about religion because Ms. Davis's concern was about a single alleged requirement in her bible: that homosexuality is not allowed, although that is merely one of a myriad of requirements in one translation of one version of the bible. Meanwhile, she ignored many other proscriptions, such as not eating shellfish, not working on the sabbath, not growing different crops in adjacent rows, not wearing clothes of mixed fibers, shaving.

    Davis had no problem with her own or anyone else's multiple marriages, although her bible states clearly in several places that one may not divorce and remarry.

    Bibles also have this in them:

    1. Judge not, that you be not judged.
    2 For with what judgment you judge, you will be judged; and with the measure you use, it will be measured back to you.
    3 And why do you look at the speck in your brother’s eye, but do not consider the plank in your own eye?

    This is Ms. Davis's worst sin.

  160. Our government consists of laws, policies, elected officials and employees who carry out laws and policies. None of these components can impose religious views on the functions of government or the state is, in fact, violating the First Amendment prohibition against the government establishing a religion. This is exactly the practice that our politicians rant against when they talk about Sharia law and theocratic countries such as Iran and the kind of states ISIS and before them, the Talliban have been trying to erect. These politicians don't see this because they view Christianity's precepts as "God-given" and above mere human laws. They should be admonished by their own Biblical text "How can you say to your brother 'Let me remove the speck from your eye,' while there is a beam in your own?"

  161. A thoughtful and intriguing column as always. I am curious, though, at what point does the codification of Christian values in the law (e.g., Hobby Lobby case and other special exclusions seemingly only available to Christians) actually represent an establishment of Religion? I know that could be a tortured reading of the history of the clause, but it feels like many are trying to force their religion on me.

  162. Pragmatist, I think you are exactly right. I think there is zero chance that the Hobby Lobby court would have decided that the owners of the corporation (closely held or not) were entitled to have their beliefs protected had they been Muslim, etc.

    My hope continues that Hobby Lobby will be sued with allegations seeking to have the corporate veil pierced. If the corporation has "religious" views, then it should be impossible to separate it from its (human) owners.

  163. Methinks Ms. Greenhouse's analysis places to much legitimacy on what was essentially a theatrical event staged by the Liberty Counsel, with Kim Davis in the role of the offended, albeit thrice-divorced, patriot.

    This was a passion play, of a sort, intended to remind our fellow citizens that gays don't deserve equal rights under the law, Biblical and secular. The judge in the case played his part, as well, by first jailing her (nod to the liberals and LGBT patrons in the audience) and then freeing her (nod to the evangelicals and Christian extremists), without exactly satisfying anyone or clarifying at all what it means to have a nation of laws, to prevent this nation from comping apart at its seams.

  164. An earlier commenter mentioned the act of Ms. Davis swearing on a Bible to uphold the constitution, not the other way around. The act of swearing on a religious text to assume the duties of a government job seems like a blurring of the lines to me. Personally, I would choose something written by Dr Seuss, if a book, in fact, has to be involved.

  165. How about swearing on a DVD case containing "Dr. Strangelove" or "Life of Brian"? We might end up with more thoughtful legislators and public servants!

  166. @ Nelson,
    I have no specific knowledge of the why but I can deduce that the formal use of a religious text is meant to make clear the formal importance of the oath being taken. eligion used to be considered the source of morality and that must be why they chose the bible. Most of the founders who weren't Atheist were Christian.

  167. How about swearing on the Constituion itself? That is, after reading it thoroughly. Think Kim Davis has ever read, or studied it? I doubt it.

  168. This is not the first, nor will it be the last, time that overreach of an argument produced the opposite of the intended result. By forcing the issue, opponents have coalesced the opposing arguments and rallied the opposition. The weakness of the initial argument is exposed, and the OPPOSITION advances its cause. Recall how the movement to codify opposition to same sex marriage in Minnesota was defeated by a group organized to defeat it, following which said group then proposed a successful referendum legalizing SSM in Minnesota. This would not have happened had the original effort to ban it not occurred.

  169. @ Warren S.
    That is how our system of government is intended to work instead of creating solutions for problems that do not exist except in the fear based minds of cowards

  170. Separation of church and state is a basic premise of OUR United States Constitution. The catholic church, which historically has controlled kings and queens through their supposed singular pipeline to the creator, wants desperately to see separation of church and state abolished in the United States so they can force their medieval religious views on all Americans, just as radical islamists want to force their beliefs on others. The catholic church started and has supported the "right to life" movement and used their power and money to get the current crop of radical right "christians" elected to public office. Six of the nine United States Supreme Court Justices are catholic. Sorry, pope and friends, over one-half the world's population - women - and the men who love them say NO. Not in America. WE will NOT let you turn OUR democracy into a religion-based country. It is time to take away the tax-free status of the catholic church and all it's supposed charities and medical branches. They're one of the wealthiest corporations in the world and make their tax-free money on the poorest and OUR taxpayer money. It is NOT acceptable. The mask is off.
    https://en.wikipedia.org/wiki/National_Right_to_Life_Committee

  171. @njglea,
    Holy cow man! Wow. Seriously the US has been a very devoutly protestant nation when it came to religion for its entire history. The current wave if religiosity that started in reagan's 2nd or 3rd run for POTUS in the 70's, actually invented a whole new sect "Evangelical" to accomplish the Protestant version of the religious nation (successfully too!) you say the RCC is trying to impose on us.
    I learned in Catholic school in NJ about how proper separation of church and State functions and the very first item on the list is that no person can apply the standards they seek to live up to upon another no matter how right they "know" themselves to be because according to the bible as well as the Constitution every person has the right to choose what path they will follow. That is a central part of how religious people explain away gods failure to intercede with evil people and bad things.

  172. How is granting a civil marriage license to a same sex couple violating anybody's religious rights? Is there a prohibition in the bible against two same sex people filing a joint tax return or being able to get a family insurance policy?

    The whole case makes no sense.

  173. It is the damage done to the human brain by religion. It poisons everything.

  174. Hidden in all the self-righteous hand-wringing by evangelicals is the inconvenient fact that ALL Christians are only buffet-style Christians, picking and choosing which virtues, which Bible verses, which social causes to believe in and support, which ones to ignore, and which ones to rail against.

    Someone on social media recently suggested that there should be new reality TV show where outspoken members of the Religious Lunatic Right are forced to spend a year living by every single one of the retrograde Biblical incantations that they claim is "God-given," all the 'Thou Shalt Nots" and all the "Thou Shalts". I'd like to see how fervently they continue to follow strict scripture after a few months.

  175. Religion isn't logical, therefore it makes no sense.

  176. Ms. Davis's case is exactly why the establishment clause was included in the First Amendment of the Constitution. Had the clause not been included, Ms. Davis's religious beliefs would be indeed an "establishment of religion" by a government representative on others. Ms. Davis is free to exercise her religion, but not to impose it on anyone else. Marriage is a civil contract, not a religious one.

  177. No. Marriage is a religious establishmenent. Government issuances of marriage licenses is a breach of the wall between church and state. Licenses of marriage unions should be abolished. The religious institution of marriage was in place many centuries before the government started intruding on marital practices.

  178. The Supreme Court has created a huge quandary for itself and all of us. And the source of this conflict is not Obergefell vs Hodges, it's Burwell vs. Hobby Lobby. As predicted by the dissenting justices, the Hobby Lobby decision will encourage others to seek an exemption from the law and claim that it's their religious believe. Exactly what is happening now.
    The two decisions are contrary to each other and in the worse possible way. So yes, SCOTUS brought about this problem (in 2014) and now they will have to either reconcile the two decisions or toss out one of them.
    This should be amusing.

  179. "For all the reasons to object to a public policy," religious reasons are simply the worst. Religious reasons are often based on superstition, codified immorality and bias, barbaric practices (need I go on). We work so hard to pass laws in this country, those laws being based on a complex and wonderful system (a combination of English law and representative democracy) that is the gold standard in this world. Permitting religious nonsense to pollute the system is like training for an Olympic race and then putting on ankle weights just before the starting gun.

  180. Yes, but we must allow people to have their myth and superstition. It's important for those who need an authority figure to tell them what to do and how to think.

  181. We do allow it- it's called the free exercise clause of the First Amendment. However, while they're out there (and I do mean "out there")"exercising" their religious fantasies, they shouldn't be allowed to run other people over.

  182. Not having had to suffer through any religious education at home or at school, one aspect of the courts decision resonated with me. You no longer have to believe in any god to have moral standing before the government. I have heard it said of many people that he or she is a person of faith, when all they mean is they go to church and follow their religion's dogma. An example would be the Catholic priest who deny's a woman an abortion when the woman would surely die trying to give birth. Ironically that priest gets more credit for being a person of faith because his faith is so strong he is willing to let someone else die for it

    No one needs to go to church, temple or mosque regularly or follow the Bible or Koran to be a person of faith.

  183. The issue in each and every case, from Ms. Davis to Hobby Lobby to MFL, is not about religion, but about new standards of tolerance required from the citizenry, standards which no longer voluntary/optional acts of largesse, but mandated by the courts.

    Now, imposition of tolerance may sound like overreach, but it is well-established that citizens cannot have rights without responsibilities. In fact tolerance is specifically listed as a required responsibility for persons taking-up American citizenship. See here:

    http://www.uscis.gov/citizenship/learners/citizenship-rights-and-respons...

    "Respect the rights, beliefs, and opinions of others", obligatory.

    What Davis, Hobby Lobby, MFL etc. arguments boil-down to is their tolerance cannot be forcefully extracted. But it can and will, as they are unfortunately finding out. In fact, if any in their crowd are naturalized Americans, they are in violation of already-agreed responsibilities and technically therefore jeopardizing their citizenship.

    Separately, and in the same spirit of tolerance, one must admit that forced tolerance ought not to be the first, sometimes only resort to implement new laws. We have a right to hasten social change, but we do not have the right to provoke and go about it gleefully, trampling all over our fellow compatriots. Surely Ms. Davis' predicament was predictable and therefore avoidable, but wasn't. And at the end of the day, if that is what Ms. Davis is protesting, then she's right.

  184. No, no, no. The law is settled. Move on.

  185. I think this is less about civil vs religious rights than it is about the requirement that public officials follow the law and do their job. I don't care if your religious or other beliefs make you totally opposed to guns of any kind. If your job is to issue concealed carry permits, you do so or you find another job.

    The same goes for private employers in most cases. If you are a pharmacist and are opposed to birth control, find a pharmacy that doesn't sell birth control items. But if your employer's policy is to sell birth control, you need to do so or find another job.

  186. Except that pharmacists are licensed by law to provide a service and given a monopoly over that service--at which point they are acting as government agents just like Ms. Davis and have no more right to pick and chose how they carry out their duties than she does. They either serve everyone and serve them completely according to law and regulation or they need to find another profession.

  187. Change the faith of the clerk, while still presenting a government official's decision to follow a fragment of the Old Testament rather than oath of office and we just witnessed a brief attempt at Sharia Law.

    I'm not saying this to offend Muslims, but merely to point out that while we've had tremendous noise in parts of the country about a non-existent threat of the Muslim's version of Abrahamic law, people (mostly women) around the country have been suffering under imposition of rules based on similar interpretations from just some of the Christian branches.

  188. What Kim Davis and the two March for Life employees are asserting is not a claim to mere "free exercise" of their own religious beliefs. They are asserting a right to impose those beliefs on others, in Davis' case by preventing gay couples who do not share her view of marriage from getting married, and in March for Life's case by preventing women covered by the same health plan from using certain forms of birth control. Judges should be able to reject such claims out of hand, following the familiar principle that "your right to swing your fist ends where my nose begins." Religious belief is accorded great weight in the First Amendment, but nowhere are certain beliefs made superior to others, or to the absence of any belief at all.

  189. As a commenter lower down pointed out, why do people in the US swear on a bible? When I say the pledge of allegiance, I don't say "under god". I have yet to be sworn in for jury duty but I assume in my county where Christianity may not even be the dominant religion, the bible is not used to take an oath.

    Who is going to be the first president to refuse to use a bible in their oath of office? Obama could have taken that step at his second inaugural.

  190. David, one can always affirm rather than swear, and the Bible is not necessary. The right to affirm rather than swear was settled because of the Society of Friends objections decades ago, because the Friends do not and will not swear an oath "so help me God", but will affirm (without the God language).

  191. They swear upon the bible to uphold the Constitution of the United States. I would prefer that Americans pledge to uphold the Constitution without reference to any religious book or idea.

  192. Ms. Davis claims that her religious beliefs prevent her from issuing marriage licenses to gay couples because her name is affixed to them. She did not object to filing the certificates of marriage after the ceremonies. She clearly defied a Court Order and was found in contempt. Her lawyer argued that a "reasonable accomodation" because of her religious beliefs should be found. She was offered a "reasonable accomodation" that would have allowed deputy clerks to issue the marriage licenses before she went to jail. She rejected it and climbed on her cross, prepared for her by her right-wing counsel and people like Mike Huckabee. While she was in jail, deputy clerks issued the licenses without her name. After she had spent a few days in jail, the judge let her out because the problem was solved. She and her counsel and Huckabee are not satisfied with the accommodation. They want her to be martyrs to their religious fanaticism. Huckabee played to the crowd of fanatics by offering to climb up on the cross with her, knowing full well that it would never happen. Huckabee tells his crowd that the Supreme Court crossed a line when it "decided out of thin air" to legalize same-sex marriage, and that Christians don't have to follow the law. He and his minions reject the idea that the Supreme Court can determine that laws violate the Constitution; instead his God tells him which laws he should tell people to violate.

  193. Citizens can believe anything. But they can't be free to act contrary to the laws of our country. There is a difference between belief and action. Bad laws should be repealed.

  194. Under the 1964 Civil Rights act, Kim Davis cannot be discriminated against based on her religious belief. Religion has been a federally protected class for over 50 years.
    Sexual Orientation is not a federally protected class.

    Kim Davis's civil rights are being violated. Where is the outrage?

  195. No, they are not. She is an elected official who swore to uphold the law. This is settled law. She is not permitted to use her religious belief to refuse to carry out the duties she was elected to fulfill. If she finds the job conflicts with her religious beliefs, she can resign. She is free to believe what she likes. No one is prohibiting her from doing that. But as the elected official designated to execute the law, she must do so. Her problem, among many others too numerous to inventory here, is that she doesn't understand the dictates of the job, that her signature on a document does not indicate that she has personally sanctioned anything. She's merely a functionary carrying out the will of the people expressed in the law. If that role doesn't suit her, she can quit and go to work as a cashier at Hobby Lobby. She may actually be qualified for that job and they'd probably love to have her. She is certainly underqualified for her current position, and grossly overpaid, too.

  196. No, Kim Davis is trying to impose her beliefs on others, including her employer. Rightfully, there is plenty of outrage with her stance.

  197. Davis isn't being discriminated against, she can believe anything she wants and she can worship at the church of her choosing. She's not allowed to insert her religious beliefs in to the work place, especially when she works in a government office and she can't try to inflict her religion on other people. What about that is so hard for you to understand?

  198. How does Judge Leon completely miss the point that the "favoritism" established for religion comes from the Constitution, from our very first amendment. Religious beliefs are specifically singled out as given a protected status, free from interference. Opinions don't rise to that status.

    The problem comes from parsing the difference between a person's beliefs and the commandments of their religion. The latter are protected, the former are not.

    What next, protection for the KKK against having to share an insurance company with black policyholders? Odious as the KKK's beliefs may be to most of us, they can be considered to be beliefs about what is moral and right and good.

    And if the two woman objected to the health insurance offered under the organization, let them buy other insurance.

  199. I agree with the point made about this allowing for a clarification but that clarification fell short.
    Here is my reasoning: Mrs Davis duty is to make sure people who apply for permits and licenses have met the legal standard for that paper. At no time is her personal opinion or approval of marriage being sought.
    Therefore she was never asked to violate her conscience. So her contention is false on the face of it with cursory evaluation.
    The inability to make this distinction between her job as the person who assures legal standards are met for the issuance of official documents and her personal opinion is in this case I think a convenient one.
    It was her apparent intent to try to subvert the SCOTUS ruling by creating a false loophole not to stand by her “religious principles” which had nothing to do with her job
    My point is that the claim of religious objection has to meet the minimum standard of actually being true before it should get to the level of being considered for accommodation in a court of law.
    No matter how she feels about it, at no time was her private religiousness engaged at her public job. She inserted her opinion where it was not required or asked for.

  200. It was pathetically laughable in last night's debate when Huckabee claimed SCOTUS was "making laws" with their "approval" of same-sex marriage.

    SCOTUS does not make laws. It renders opinions on the Constitutionality of laws that have been promulgated by legislative bodies, etc. In the case in point, it ruled that a law that precluded same-sex marriage was unconstitutional.

    Once that ruling was made, marriage licensing authorities are mandated to comply with it -- irrespective of their personal religious beliefs. If their religious beliefs prevent them from so-doing, then they are obliged to let someone else do the work or step down.

    Instead of doing that, Kim Davis created a tempest in a tea pot. Why do we put up with public servants like her -- or politicians who don't understand the basic concepts of the Constitution like Huckabee, Cruz, Paul and others?

  201. Mayngram: Who taught your civics class in HS. They should lose their pension. The Supremes ruled on an amendment and invented out of whole cloth the right to abortion as well as same sex marriage. No legislature voted this into existence. As my favorite columnist Walter Williams says: " You can't win against ignorance."

  202. Deeply embedded in this matter is one principle which must be upheld as a civil right. It has nothing to do with the religious act of marriage, It is the right of two people under the civil law having the same economic and political rights (and duties) when they create a partnership -- regardless of the sex of either party. The state can define the non-discriminatory relationship in law.

    It can also set forth licensing requirements for men and women performing religious services, blessing in their own way the couple. Some providers require good standing in the religious community, some education in the precepts of that church before scheduling a ceremony. Some, like County Clerks provide a secular ceremony when requested in chambers. This is no more and no less than validating by imitating the law.

    This is two separate issues. With the wisdom of someone other than Solomon chose to cut the baby in half. The religious communities were their own worst enemy. They chose to leave the legitimate grounds of the religion and argue on what Religion was -- they argued the semantics.

  203. It is good to see Christians fighting for their religious beliefs and principles. It takes courage and grit to go against the grain and they are to be admired.

    The March for Life is a very influential organization and have grown in large numbers since it was founded since Roe vs. Wade became law. They have many young members who have seen the horrors of abortion through ultrasounds and the killing of innocent babies. I hope they continue this fight and they have my support. They are on the front lines of exposing Planned Parenthood for the sham operation that it is. They have my support.

  204. KMW,
    Right, real courage and grit to yell and scream and lie and twist facts against women trying to live their lives in a difficult moment. Not something to be admired. No fear of harm nor retributions. Real courageous. /snark!
    If Christians are so in the Right why are they setting up dishonest/sham companies, lying to the IRS about taxes, to dishonestly/slanderously edit videos, against a company legally providing a service that is ok'd by the SCOTUS?
    Real admirable. I'm sure their Christ is real proud of hypocrites and liars.
    PP. has been investigated in every R-wing state they operate and have been found innocent of illegalities.
    There is nothing admirable about liars and hypocrites trying to force their beliefs and misguided views upon society.

  205. See, this is the problem when those people who claim to be religious feel they need to make everyone else step in line with them. They go about trying to make laws that reflect their religion. March for "Life" is a religious (mainly "Christian") organization, trying to impose its beliefs on the non-religious, or other-religious. The Supreme Court has spoken on a woman's right to abortion. Your religious beliefs should not trump that. You are free to stand up for your principles and NOT have an abortion. I don't know why this is so complicated. We have a pluralistic society, and the Establishment Clause has been the firewall between democracy and theocracy.

  206. As there is one set of civil rights and myriad religions and interpretations, I'd posit that civil rights trump religious ones. Otherwise, chaos and confusion.

  207. The people who push right-wing religion the hardest are the most generous to themselves. This has been going on for at many, many, many years. They don't worship any god other than money. They feed vulnerable people lots of hogwash that will get them riled up enough to part with their money, their consciences, their common sense, and their wills. It's really a sad and despicable "industry," that should never be able to avoid paying taxes. Sensible people should never stop reminding the world of the serious danger of religious "fundraising," particularly for political causes.

  208. I often think I agree with Ms. Greenhouse but I can't be sure; her writing is nearly impenetrable. Please simplify and clarify.

  209. Religion and Secularism are always going to be at odds with each other because one overtly believes in a Supreme Being and the other does not. Secularism in not about Religion. Period. So how is Secularism going to be advanced except at the expense of Religion? One must give way to the other and there must always be tension, otherwise Secularism will completely dominate in America and that is all right with some.

  210. Scott,
    Easy.
    Quit thinking/saying that ones religion must dominate over everyone else.
    I was always taught that ones religion was private and no concern to anybody else.
    We are all free to worship whomever, however we wish.
    Why would anybody wish to infringe upon that American Right?!?
    American secularism has no bearing upon Americans religion until they are trying to force their beliefs onto my/our public and not keeping them private.
    Easy! Keep it to themselves.

  211. A very few minds programmed by religious beliefs can use their mind to look at themselves. They are blind-minded.

  212. Religions are the opium of the people!

  213. Greenhouse: "When does government solicitude for religious exercise cross the line into establishment?"

    Excellent article and a question that cuts to the heart of the matter.

    My take on this is that when we have the religious beliefs of some are being imposed on others -- e.g., Kim Davis -- and when the court agrees with the believer(s) with a particular religious perspective, therefore sanctioning that particular religious perspective, then we have "establishment"; since the other people/citizens of faith or no faith are being required to observe the religious tenets of others.

    With respect to those using the complicity argument when opposing the right of colleagues in the same group health plan to avail themselves "to a health plan’s free birth control," how is that being complicit?

    If I as a taxpayer am paying for roads that people can use to travel to a pharmacy that sells birth control products, am I being complicit in supporting birth control when one of my neighbors chooses to purchase that product?

  214. The mayors of the sanctuary cities should be in jail for a far greater crime.

  215. Tom Paine,
    Dang, I always thought churches claimed sanctuary.
    Look at what they ( their believers ) have become.
    Nothing like their Christ.

  216. Incorrect. Compliance with ICE detention requests is voluntary, not mandatory. That's why the legislation pending in Congress involves cutting federal funding, not ordering compliance, because the federal government can't do so.