Kim Davis Has No "Right" to Refuse Marriage Licenses to Gay Couples; Her Choice Is to Do Her Job or Resign

Rowan County Clerk Kim Davis, right, talks with David Moore following her office's refusal to issue marriage licenses at the
Rowan County Clerk Kim Davis, right, talks with David Moore following her office's refusal to issue marriage licenses at the Rowan County Courthouse in Morehead, Ky., Tuesday, Sept. 1, 2015. Although her appeal to the U.S. Supreme Court was denied, Davis still refuses to issue marriage licenses. (AP Photo/Timothy D. Easley)

Kim Davis, the Clerk of Rowan County, Kentucky, who, on personal religious grounds, has refused to issue marriage licenses to gay couples, misconceives her job.

As a government functionary, she is an agent of the Rowan County government, vested by law with certain responsibilities, including the stamping and issuance of pieces of paper that make legal and binding (with all the privileges and appurtenances pertaining thereto) the contract of marriage.

Her job description does not include the discretion to decide yes or no based on an assessment of the applicants' maturity, seriousness, compatibility, commitment to each other -- or any other factor, including gender. Her job, in other words, is to take the license fee and stamp the documents, just like a DMV employee renewing an auto registration.

She is free to disagree with the now-settled law of the land regarding same-sex marriage. She can give speeches, pen Op-Eds, sermonize and blog to her heart's content about the Supreme Court's 2015 decision in Obergefell v. Hodges, eliminating legal obstacles to gay marriage. She can also quit her job in protest. But refusing to do her job, no matter how strong her convictions and genuine her objections, is not a constitutionally protected option.

Ms. Davis makes the crucial mistake of seeing the gay marriage issue as all about her (which, in turn, leads her to the erroneous conclusion that compelled issuance of marriage licenses infringes her rights). But the issue is about her in her capacity as County Clerk, not as private citizen. As County Clerk, as part of the official apparatus of local government, her actions (or inaction) are not protected by the First Amendment.

If Ms. Davis can't bring herself, in the aftermath of the Supreme Court's Obergefell decision, to issue marriage licenses to gay couples, then she should resign. That is her only option. As an officer of government, her function is to enforce the laws; the First Amendment doesn't empower her to decide which laws she will enforce and which ones she won't.

This principle applies to both sides of the gay marriage debate. In 2010 Jerry Brown, then California's attorney general, refused to defend, against a legal challenge in federal court, the state proposition forbidding same-sex marriage ("Prop 8"). It was Brown's job, as attorney general, to offer a legal defense for all state laws (unless blatantly unconstitutional, which Prop 8, at the time, certainly wasn't), regardless of his own personal preferences.

But Brown, with an eye on his future run for the governorship, refused. This choice may have been politically astute (Brown was later elected and reelected Governor, after all). However, it was a setback for gay rights, jeopardizing the strategically planned claim for same-sex marriage when the Prop 8 case finally reached the US Supreme Court.

The correct choice for both Ms. Davis and then-Attorney General Brown, if they feel strongly enough about these issues, is to resign. Short of that, their responsibility is to swallow hard and do their jobs: issuing marriage licenses to gay couples in the case of Ms. Davis, and writing briefs in support of Prop 8 in the case of Brown.

Public officials, when acting in their official capacity, do not enjoy the same First Amendment protections as private individuals. They have to do their jobs or step down.

Peter Scheer is executive director of the First Amendment Coalition. The views expressed here are his alone; they do not necessarily reflect the views of FAC's Board of Director.