In the United States same-sex marriage as a political issue is over. The Supreme Court ruled in June that all states had to issue marriage licenses to same-sex couples, and this is a ruling that cannot be overturned by politicians. But while it may no longer be a political issue, its legal and cultural ramifications continue to divide the US. The case of Kim Davis, a clerk in Kentucky who refused to issue marriage licenses is the first of these big flashpoints.
Davis is a county clerk, an elected official who deals with all sorts of legal and administrative issues such as keeping electoral records, checking taxes and issuing marriage licences. A marriage licence is simply a piece of paper that states both partners are of legal age to marry, aren’t already married and both consent. After getting this paper, the couple can then get married in whatever type of ceremony they want, religious or civil.
It is this piece of paper that Davis refused to issue, claiming that it went against her religious beliefs. She in fact stopped issuing any licences at all, for gay or straight couples. The Supreme Court rejected this argument, and another judge ordered her to resuming issuing licenses. When she refused, she was sent to jail for contempt of court (refusing to obey a judge’s legal order). Her deputies have now started issuing licences.
Some conservatives have publicly come out in her defence, with Republican Ted Cruz somewhat confusingly saying “for the first time in history, a Christian woman was put in jail for standing up for her beliefs”. However, legal experts agree that her case is without merit. The issue is that as a government official, she is obliged to do her job. She can’t just claim religious objections while remaining in her post. It would be like a strict Muslim clerk refusing an application to open a bar on the basis that his religion forbade alcohol. If she so strongly disagrees with what her job now requires, the honourable thing to do would be step down. Otherwise she is making gay or lesbian couples in her county pay for her beliefs.
Furthermore, Davis isn’t conducting ceremonies, she’s issuing a piece of paper. It’s not exactly joining a couple’s hands at the altar. I think things would be different if she were a priest refusing to conduct a religious ceremony for a same-sex couple. Then – no matter what you thought of her beliefs – it would seem very wrong to force a religious figure to carry out a church ceremony against that church’s beliefs. That sort of ruling is definitely not on the horizon.
The legal battle does however point to an interesting aspect of the issue in the US. Unlike in many countries where gay marriage was legalised by the parliament, in the US it was the courts who decided it. The Supreme Court is an unique part of US politics, and it regularly infuriates both liberals and conservatives. In a divided country where there are many deeply conservative states, this method is bound to lead to clashes. In the Netherlands, which was the first country to legalise gay marriage in 2001, it took 13 years before civil officiants who refused to carry out same-sex marriage ceremonies were no longer allowed this refusal. While Davis’s case is different (she doesn’t have to marry anyone), it does point to a certain pragmatism that the US may have to adopt in certain areas. While the political battle may be over, the cultural one will continue for some time to come.