Where is undue hardship?

Published 11:47 am Friday, September 11, 2015

You may have heard of Kim Davis by now. Ms. Davis is the Kentucky county clerk who stopped issuing all marriage licenses in Rowan County, Kentucky rather than issue marriage licenses to gay couples as required by a recent Supreme Court ruling.

Ms. Davis stated her refusal to issue gay marriage licenses was “under God’s authority” and therefore a protected First Amendment right of freedom of religion. Ms. Davis, a practicing Christian in a part of America widely known as the “Bible belt” and a four-time practitioner of marriage herself, can indeed affirm that the Christian bible is not tolerant of gay practices and offers no support for gay marriage.

Davis defied a court order to issue marriage licenses to all who qualified for marriage under Kentucky law, choosing civil disobedience instead, and spent five days in jail as a result of her stance against gay marriage.

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In choosing this path, Davis followed a long and honorable tradition in America of civil disobedience in a non-violent fashion. And there is little doubt that Davis’ personal views on gay marriage are shared by many in her county and community, even across the U.S.

The questions underlying this act of civil disobedience is: What is the meaning of the First Amendment in terms of protecting freedom to worship as one chooses? How far does that protection advance in a secular society?

In response to the first question, in order for true freedom to worship to be protected, that protection must extend to all religions equally. In order for that protection to work successfully, religion must stand at a distance from government and law, where competing versions of absolute religious truths can flourish without any one religion laying claim to the public space of society.

And if the freedom to worship lies protected from government intrusion or religious dominance that undermines the religious freedoms of others, then the only true protection of the freedom of worship lies not in government at all, but in the lives and practices of the faithful free of coercion.

Ultimately the “protection” of free worship lies in separation from government, not in attempts to make government responsive to any particular religious tenet by any specific faith.

But our laws have also sought to grant, whenever possible, religious accommodation for those whose faith has made public participation difficult. The “rule” in this regard has been and remains, where such accommodation can be granted without “undue hardship” a term determined by the Supreme Court.

In regards to Ms. Davis the question becomes, can Kim Davis serve as county clerk, a job requiring the issuance of marriage licenses to all who meet Kentucky legal qualification, now including gay couples, if she refuses to issue marriage licenses? To obvious answer is NO, unless Davis can accept that her deputies can and will issue all marriage licenses in order to accommodate her religious objections.

If this solution, offered by judge Bunning, is accepted by Ms. Davis, then the “undue hardship” rule has served to resolve the conflict and the people of Rowan County can later determine if Ms. Davis deserves to serve in the position of clerk with such personal limitations regarding the job tasks.

But there is the beginning of a larger issue here, one bought to attention by Hobby Lobby and others recently. There are now challenges to the very core of the American experiment in secular government where the separation of church and state has worked for so very long.

Is it undue hardship for employers to insure their employees fully? Is it undue hardship to bake cakes to be eaten by homosexuals? Is it undue hardship to take photos of humans whose sexuality is different from your own?