Fox News's Shepard Smith is not buying the spin from Kentucky clerk Kim Davis and her lawyers.
In a segment after Davis's release from jail Tuesday, Smith slammed Davis — who refuses to let her office issue marriage licenses to same-sex couples — and her supporters — who he described as "haters" — for what he characterized as hypocrisy:
When this started, this lawyer said he needed an accommodation for a woman who wanted one. She said she didn't want her name on a license for gay people. They couldn't come up with an accommodation. Now they've come up with one. They've let her out of jail. They said, "All right. You don't have to have your name on there. We'll just put name of the county there. All of this is done." But it's not what they want.
Smith is right that Davis has been repeatedly offered an accommodation for her religious beliefs — one that lets her office issue marriage licenses while she pulls out of the process. But her lawyer suggested that's not enough, arguing that licenses issued without Davis's name are invalid — even though Rowan County Attorney Cecil Watkins and Kentucky Attorney General Jack Conway said they are.
So Davis appears poised to continue refusing to issue marriage licenses when she goes back to work next Monday. To her, it seems like it wasn't ever enough to get an accommodation for herself. She wanted to be able to impose her religious beliefs on her whole office — and, as a result, the entire county government. That's not how religious liberty works.
How religious liberty is supposed to work
Here's how Davis's situation is supposed to work: If a same-sex couple shows up at a county clerk's office to get married, an individual official can refuse to grant them a license. But the official would have to hand the case over to another county staffer, who would then give the license to the couple. The issue is that individual government employees may refuse — based on genuine religious objections — to marry same-sex couples, but the county government as a whole has a compelling interest to accommodate the couple and avoid violating their constitutional right to marry.
So an individual county official can step aside to avoid issuing a marriage license to a same-sex couple, but the government has to find a way to issue a license to the couple in the end, and do so in a way that doesn't significantly slow down the process.
What's different in Kentucky is that Davis didn't step aside and say she wouldn't give out any marriage licenses, but instead ordered her entire office not to — even though some of her deputy clerks were reportedly willing to do so. Even after five of six deputy clerks publicly told a federal judge that they'd be willing to marry same-sex couples, Davis said she would block them from handing out the licenses if she was released from jail.
So Davis was given the option to step aside and let deputy clerks give people, including same-sex couples, marriage licenses while she took no part in it. She rejected that offer. She didn't just want an accommodation; she wanted to stop her entire staff from doing what she disapproves of on religious grounds.
Faced with this situation, US District Judge David Bunning concluded that the only way the county clerk's office can function — meaning fulfill its legal duty to grant marriage licenses — was to keep Davis in jail until she either resigned or agreed to let her staffers give marriage licenses. This is as productive as incarceration can get: Since Davis, as an elected official, can't be fired under the law, incapacitating her in jail was the only way to let the county government work.
In the end, Bunning allowed Davis's release from jail by enforcing this accommodation: Davis would be freed, but the release order warned that if she tried to interfere with her deputy clerks' issuance of marriage licenses, she would be punished again. So Davis doesn't have to violate her religious principles and directly issue licenses to same-sex couples, but her office does — exactly how religious liberty is supposed to work.
But it appears Davis wants to continue trying to use her role as a government official to impose her religious views on others, including people on her own staff, in a way that discriminates against same-sex couples. That would clearly violate the separation of church and state enshrined in the Constitution, so it's no surprise that a federal court didn't allow it. And it might land Davis in jail — again.