On September 8, 2015, a Kentucky County clerk who had been refusing to issue any marriage licences ever since same-sex marriage was upheld was let out of jail after marriage licences began to be issued to all qualified applicants, including same sex couples by the office in which she works. A judge ordered her deputy clerks to issue the licences. It remains to be seen whether she will interfere with the issuance of these licences now that she is out of jail. Her current objection is that same sex marriage offends her religious sensibilities and that her name appears on the paperwork implying her approval even if she does not issue the licence and she is appealing the case based on that objection.
While it was probably ill-advised for the judge to give this clerk the martyrdom she had been seeking by sending her to jail, her obstinate behavior was proving difficult to counter. How could the judge force her to obey the law after all? Fines would probably have been a good idea even though they would have been paid easily by her supporters on her behalf. The licences still would not have been issued.
Tactics aside, the situation raises a number of questions such as "should she be made to violate her 'religious conscience' so that the rule of law is upheld?" This generally is a argument whose conclusion depends on how you define "religious freedom" as enumerated in the First Amendment.
The quick and easy answer is the rule of law must prevail BUT if it violates your conscience, religious or otherwise, and you defy it, you must be prepared to accept the consequences of its violation. This does not mean you can break other laws to signal your opposition to the law in question; no, it means you violate the law in question and hope that the application of the consequences awakens the conscience of the nation in opposition to the supposedly odious law.
This is what Martin Luther King Jr. and his supporters did when they broke the Jim Crow laws, tried to vote or tried to defy any of the racist segregation laws. He did not break other laws and he did not commit violence. He also spent much time in jail suffering the consequences of the laws he broke. His cause ultimately prevailed in the sense that laws enforcing segregation were eventually outlawed because he indeed did awaken the conscience of the country. Thank goodness for Martin Luther King, Jr.
So in this sense the County Clerk is working from the Civil Rights playbook. The question then becomes is whether she is indeed fighting for Religious Freedom and against tyranny. The answer to this is, pretty much obviously, no, she is not fighting for Religious Freedom.
The comparison to the Civil Rights era is again very useful. First of all, this case actually has nothing to do with religion on a legal level - no one cares why the Clerk is not issuing marriage licences to all qualified applicants. Her reasons could be arbitrary and capricious or well thought out. Her reasons are irrelevant. If an atheist or Hindu, Muslim, Jew, Catholic or Jedi Knight were to refuse to issue the licences, they would all be in trouble. The problem is NOT what she believes, it's in her behavior.
That makes all the talk about religious freedom totally bogus since her religious beliefs are simply irrelevant to her being jailed. An atheist would be heading for that same jail if they did the same thing.
We then come down to whether a person has a right, as a government employee and County Clerk, to not give out marriage licences to mixed race couples (for whatever reason) as occurred pre-Civil Rights or to same sex couples (for whatever reason) as is occurring here. Obviously the answer is no, there is no such right.
And no, this County Clerk does not want religious freedom; she wants Religious Privilege. She wants to obey the laws she wants to obey according to her religion in a way the violates the religious beliefs of others. That is the definition of privilege and is the opposite of Religious Freedom. Yes, this is Opposite Think.