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Kim Davis: Personal Beliefs and Public Duty

Michael Hertz: Kim Davis could have achieved the proper result simply by refusing to issue the license herself but authorizing her deputies to act.

Here's what we know. Kim Davis is the chief clerk in Rowan County, Kentucky. Due to her personal religious beliefs, she refused to issue marriage licenses to same-sex marriage partners.

Kim Davis Meets Pope

A federal judge ordered her to issue the licenses, and she continued to refuse and went to jail for contempt of court.

There was an easy, obvious answer to this dilemma. The federal judge pointed to it when he asked her to authorize her deputies to issue the licenses. But she refused. When she went to jail, five of the six deputies voluntarily issued the licenses but without her signature, leaving a question as to whether the licenses were valid. Thus, the controversy continued.

The conflict between a government official's personal beliefs and public duties arises on many occasions. The most obvious one is when a judge is asked to decide a case when he or she has a conflict of interest or a conflict of belief. The judge can recuse him or herself and should do so in order to insure fairness. No one finds anything wrong with this. (However, none of the Supreme Court justices recused themselves from deciding the same-sex marriage case, despite the fact that many of them had well-known opinions on the subject.)

Recently, North Carolina adopted a rule permitting magistrates to recuse themselves from performing “all lawful marriages under this Chapter based upon any sincerely held religious objection.” The same rule applies to individual officials being asked to issue a marriage license. .

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However, the law carefully requires that the principal official in the area must insure that there are persons able and willing to perform marriages and issue licenses. At the time that North Carolina adopted this law, only Utah had a similar recusal law.

The North Carolina law appears to be well thought out and appropriate. (I say this even though I personally think that same-sex marriage should be allowed and is moral and proper.) It is an attempt to permit individuals to adhere to their own beliefs, while at the same time making certain that the government carries out its obligations to all citizens.

Both goals must be achieved, though. For example, I don't think we could permit public ambulance drivers to refuse to provide rescue services to same-sex individuals because the emergency situation would be likely to cause harm before an alternative driver could arrive on the scene.

Kim Davis could have achieved the proper result simply by refusing to issue the license herself but authorizing her deputies to act. Had she done that, she would have avoided the entire controversy and her position would have been understandable and acceptable. She didn't do this, though, because she wanted to continue the same-sex marriage controversy. Therefore, she deserved to be jailed for contempt of court.

It's a sad commentary on life in these United States that she and others in similar positions cannot take a stand that should satisfy their own needs without creating unnecessary controversy and hardship for others and society as a whole.

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Michael T. Hertz