In much of the mainstream media Kim Davis's case is regarded as cut and dried: She sought an office that requires its holder to license marriages according to the law; the law now recognizes a union between persons of the same sex as a valid marriage; when Davis refuses to issue licenses to same sex-couples because according to her religion marriage is a union between a man and a woman, she puts herself above the law she has pledged to uphold and carry out; end of story.
But it's not that simple. When federal judge David Bunning declared that people cannot be allowed "to choose what orders they follow" just because their conscience tells them to -- religious faith, he said, "is not a viable of defense" -- he was signing on to Justice Antonin Scalia's reasoning in Employment Division v. Smith (1990). Two Native Americans who had been denied employment compensation benefits because they had ingested peyote during a church ceremony claimed an exemption from the law governing controlled substances; their behavior, they argued, was protected under the First Amendment's guarantee of the free exercise of religion. Scalia responded by citing Reynolds v. United States: "To permit this would be to make the professed doctrines of religious belief superior to the law of the land." Democratic government, Scalia added, "must be preferred to a system in which each conscience is a law unto itself."
Although these sentiments have the sound of common sense, they were received in 1990 as "a revolution in Free Exercise jurisprudence" (Steven Gey, Religion and the State) because they went against a then-established tradition of deferring to religiously inspired action even when it conflicted with a generally applicable law. Sherbert v. Verner (1963), for example, turns on the denial of unemployment benefits to a Seventh Day Adventist because she declined work that required her to show up on Saturdays. Lower courts upheld the denial, but the Supreme Court reversed it, holding that no one should be forced to choose between "abandoning one of the precepts of her religion" and securing a job; the burden on free exercise is just too great. (Hello, Kim Davis.)
Obviously, these two decisions (and there are many more on either side of the divide) offer different templates for determining how to think about Kim Davis: from the perspective of Smith, Judge Bunning got it right; from the perspective of Sherbert, the state should find a way to accommodate Davis's deeply held beliefs and not exact as the price for adhering to them her employment and her physical freedom. (She has now been released, but after having been jailed for six days.)
What makes things so sticky is that the conflict between these two perspectives is built into the free exercise clause itself: Congress shall make no law prohibiting the free exercise of religion. The question (and it is a question that cannot be answered by just parsing the text) is, What does it mean to freely exercise one's religion? Scalia gives one answer in Smith when he draws a line between the having and expressing of religious convictions and the conduct a believer might engage in because she thinks those convictions command it. In his view, free exercise extends only to the thought and expression part; "otherwise prohibitable conduct" is not saved, he says, merely because it is "accompanied by religious convictions."
But this severe take on the matter raises the question of why there is a free exercise clause in the first place. If thinking and publishing religious thoughts is what is being protected, the free expression clause of the First Amendment takes care of that already. Why have an additional clause unless it is to protect something additional, and what could that something additional be except the actions that follow necessarily in the eyes of the believer from the beliefs she is committed to? Many who agree with Bunning's ruling say that Davis is still free to practice her religion, but that is only so if "practice" is confined to the circuit between her heart and her God (and there are religions whose duties are so confined). But if practice extends to the deeds that are for her the expression and confirmation of her faith, the prohibition or criminalization of those deeds will be an abridgment of her freedom because it is a burden on her free exercise.
If the free exercise clause is strongly interpreted to include actions as well as thoughts, the clash between religious and legal imperatives is inevitable. Nor can conflict be avoided by an act of compartmentalization, by saying you can order your private life in the home or the church as you like, but when you act in the public square you must conform to the civil norms enacted by a legislature. This familiar distinction (given canonical form by John Locke in his Letter Concerning Toleration, 1689) seems neat, but just underneath its surface is the tension it claims to outflank. Just ask yourself, how will the boundaries between the private and public spheres be established? Who will draw the lines? The answer will always be "the state," and that answer puts the state in the business of determining what does and does not fall within the scope of religion. It is hard to see how that can legitimately be the state's prerogative: What enables a civil magistrate to be the arbiter of religious doctrine and the policeman of its territory?
One might try to finesse the dilemma by invoking the oft-cited biblical verse "Render unto Caesar what is Caesar's." But that raises the question of "What after all belongs to Caesar?" -- a question that cannot be answered by Caesar without making him the head of the Church, as he has been in some societies, but not in ours. When what Caesar requires speaks only to the maintenance of good civil order, the believer will have no trouble acquiescing; but when what Caesar requires is the commission or condoning of sin (a distinction without a difference), the believer who acquiesces is in danger of harming her immortal soul. That is how Kim Davis sees it, and no secular reason -- no reason derived from a world view in which God has been eliminated or kicked upstairs -- is going to persuade her to see otherwise.
Years ago Justice Potter Stewart famously said that the refusal to permit religious exercises in the public schools should be understood "not as the realization of state neutrality," but as "the establishment of a religion of secularism" (dissent in School District of Abington v. Schempp, 1963). What Stewart sees (but doesn't quite say) is that neutrality is secularism. A state that declares itself neutral toward religion -- will not pronounce on it one way or the other -- is a state that has taken religion off the political table and effectively neutered it while pretending to be indifferent to it. "We won't say yes or no to religion" means that we will operate independently of its perspective; it means, in effect, that we say no to it. It is in the end impossible for the secular state to be fair to religion, not only because fairness is not what religion demands -- it demand precedence -- but because fairness is a secular value whose invocation always marks the marginalization and downgrading of religious interests in favor of the interests the state has identified as primary. Just ask Kim Davis.