Is N.C. magistrate law a model for nation?

Rowan County Clerk Kim Davis cries out after being released from jail in Grayson, Ky.
Rowan County Clerk Kim Davis cries out after being released from jail in Grayson, Ky. AP

Kim Davis, the clerk in Rowan County, Ky., went to jail last week, and there was no good reason for her to be there. Americans can expect more conflicts over religious conscience and same-sex marriage if we don’t find a way to coexist peacefully. Ms. Davis has become a symbol of what happens when we don’t.

Some on the left say that you must do every aspect of your job, despite your beliefs, or resign. But this has never been the practice in the United States. We have a rich history of accommodating conscientious objectors in a variety of settings, including government employees. Do we really want to say that an otherwise competent employee must quit or go to jail?

We shouldn’t want that. Indeed, North Carolina has already shown how to accommodate conscience and ensure that all citizens receive the legal documents, including marriage licenses, for which they are eligible.

The first thing to acknowledge, however, is that Ms. Davis didn’t cause this problem. The Supreme Court did. When the court ruled in June that same-sex marriage is a constitutional right, it redefined marriage for the nation, in a way that I and many others do not believe was constitutionally justified. And it redefined Ms. Davis’s job.

Because each marriage license issued by the clerk’s office bore her name and title, Ms. Davis concluded that her religious beliefs meant she could not have her office issue licenses to same-sex couples. So she had the office stop issuing them entirely.

Ms. Davis felt she had to follow her conscience.

That, after all, is what religious freedom and religious accommodations are all about: creating the space for citizens to fulfill their duties, as they understand them, to God — regardless of what the rest of us think.

So it was incumbent upon the government to try to work out a solution. Ms. Davis wasn’t trying to prevent same-sex couples from getting marriage licenses at all; she just didn’t want her name or title on the paperwork. That’s why she wouldn’t allow her deputies to issue the licenses.

Ms. Davis ended up in court. But it shouldn’t have gotten to the point where this county clerk was being hailed as either a hero or a villain. The Kentucky Legislature should have looked instead to North Carolina.

Sensing that the Supreme Court might redefine marriage, the North Carolina Legislature passed a law earlier in June creating a system to accommodate — as far as possible — the conscientious beliefs of magistrates who objected to performing same-sex marriages and clerks who objected to issuing licenses.

The North Carolina law made clear that no eligible couple could be denied a marriage license, but officials could recuse themselves should they have sincere objections.

Perhaps a similar solution could be found in Kentucky, by removing an individual clerk’s name and title from a marriage license.

While the debate in Kentucky focused on a public official, others will crop up involving private citizens — bakers, florists, photographers — whose beliefs may conflict with their ability to help celebrate same-sex weddings.

We need not perpetuate a culture war, and we need not seek a winner-take-all solution. Peaceful coexistence is possible. North Carolina gives us a good example on how to proceed.

Ryan T. Anderson is a senior research fellow at the Heritage Foundation.