Kim Davis, the county clerk in Kentucky who refused to issue marriage licenses to same-sex couples or resign, even after losing in court, was sent to jail Thursday.
In 2013, Kentucky passed a religious-liberty law.
These two facts are not in conflict.
Despite what you may have heard, these state Religious Freedom Restoration Acts, including those proposed here in Georgia, do not grant people the right to do as they please and throw the Bible (or Torah, or Koran …) at anyone who objects. Davis, a Democrat who was elected clerk of Rowan County last November, was found in contempt of a federal court; the federal RFRA of 1993 didn’t help her, either.
In the two months since five members of the U.S. Supreme Court discovered a constitutional right to same-sex marriage (“Hey, will ya look at that! It was over here in the corner all this time!”) America has not been beset by a spate of government officials or private business owners citing the federal law while flouting that ruling. The Kentucky case made headlines nationally because it was out of the ordinary.
Nor have we seen disorder in the states where gay marriage was made legal before this summer. The exceptions are well-known because there are so few of them: the photographers in New Mexico, the baker in Oregon, the chief justice in Alabama. So far, they’ve lost in court just like Kim Davis did.
Are there those on the traditional-marriage side who tell their constituents RFRA really does speak to this issue? Yes. But the loudest voices linking the two belong to gay-rights advocates. Having observed them in Georgia over the past couple of years, one can almost watch them moving the goal-posts:
2014: No RFRA unless it matches the federal language.
2015: No federal-language RFRA unless it also includes anti-discrimination protections.
2016: No RFRA at all, and legislators better pass a new state civil-rights law.
Never mind that RFRAs have not trumped gay rights in court, or that RFRA opponents can’t tell you which legal standard for religious-liberty cases they prefer to strict scrutiny — the relatively arcane subject matter these laws actually deal with. The illusion has become the received wisdom. Some of Georgia’s corporate titans have put a great deal of political capital into cementing that perception, splitting the right on this issue.
Now the line for all those who don’t want to be branded “bigots” for disagreeing on policy starts behind the American Civil Liberties Union, which after this summer’s court ruling went so far as to disavow the 1993 federal religious freedom law it once worked to pass.
Thus have activists backed themselves into opposing a law that over the years has almost exclusively served to protect the rights of religious minorities, from Sikhs to native Americans.
There was a path to resolving this issue in a way that bolstered liberty on all sides. It was a path that started by recognizing what RFRAs do and don’t do, set that issue aside, and then led lawmakers toward the serious work of determining where one person’s rights end and another’s begin on the very narrow, very specific question of goods and services related to same-sex weddings.
That path might still exist, but it is increasingly hard to find amid the overgrown verbiage.