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Kim Davis, Gay Weddings, and the Case for Marriage Privatization

by Craig Berlin, published

It was officially time to get the government out of marriage when the Defense of Marriage Act was repealed in 2013, but if our leaders can't see the writing on the wall now, it's hard to guess how much more obtuse they can be.

The issue of gay marriage continues to be divisive as Americans fall largely on ideological lines either in support of Kim Davis or her incarceration for refusing to issue marriage certificates. On Sunday, CNN reported that Ms. Davis will appeal the contempt of court ruling issued by a federal judge that landed her in jail.

Support has come from Christian conservatives, including presidential candidates Ted Cruz and Mike Huckabee, who would be expected to approve on a theological basis. Huckabee also asserted that "because Congress has made no law allowing for same-sex marriage, Kim does not have the Constitutional authority to issue a marriage license to homosexual couples."

However, he made no mention of the Supreme Court's previous rulings over the last 120 years (at least 15 on record) asserting that marriage is a fundamental right, none of which ever stated it's only between a man and a woman.

While many on the left tend to look at the Constitution as a "living, breathing document" written by flawed men nearly 250 years ago, conservatives tend to view the Constitution more strictly. However, it's issues such as these where cherry-picking flourishes.

Since the demise of DOMA, one favorite of conservatives is the 10th Amendment which reads, "the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people," asserting that decisions about marriage should be left to the individual states.

Some of the arguments are far more creative, such as Ed Straker's claim that Davis' jailing is in violation of the 13th Amendment, which outlaws involuntary servitude. He writes in the American Thinker:

"[T]he government cannot force people to take specific actions. There are exceptions, for things like paying taxes, community service, and the draft, but generally speaking, the government cannot compel people to commit acts – it's too much like slavery." - Ed Straker, American Thinker columnist

Straker curiously goes on to disavow the 14th Amendment, where he claims equal protection was about race, not sexual orientation -- even though the Supreme Court held this year that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause.

This decision was long overdue and when viewed objectively, it stands on the Equal Protection Clause alone, largely due to the 1,138 benefits, rights, protections and privileges of the legal institution of marriage.

Many on the right voice concerns that the government, particularly at the federal level, is encroaching on the freedom and liberty of American citizens -- and in many cases they are correct. Yet ironically, they are often the most strongly opposed to homosexual behavior and allowing gays to marry.

Regardless of one's individual views, because marriage involves a contract and specific legal ramifications, a state must treat individuals in the same manner as others in similar conditions and circumstances.

If marriage is a fundamental right, no law should abridge such a privilege. If not, it is still a civil rights issue that calls for equal application of the law.

The states are where marriage licenses are issued, but a conflict arises when granting a particular class of individuals the right to engage in an activity while denying other individuals the same right.

Eugene Volokh of UCLA School of Law offers an extensive analysis of when a religious exemption can relieve an individual of performing part of his or her job they feel is objectionable.

He write:

"Title VII of the federal Civil Rights Act, both public and private employers have a duty to exempt religious employees from generally applicable work rules, so long as this won’t create an 'undue hardship,' meaning more than a modest cost, on the employer;" however, "Title VII expressly excludes elected officials."

The problem. in large part, for Kim Davis right now is that she not only refused to issue marriage licenses herself, she also refused to allow any of her deputies to as well (all but one, her son, have agreed to) and she is unwilling to resign.

Volokh believes that if she is agreeable, she is more likely to find some sort of accommodation via Kentucky's Religious Freedom Restoration Act (RFRA), which requires government agencies to exempt religious objectors from generally applicable laws. This won't help Davis in federal court but if she is interested, she can seek a modest exemption under the state's RFRA, such as getting an exemption allowing her to issue licenses without her name.

Refusing to issue licenses is a violation of state and federal law, but asking for an exemption from a state statute under the RFRA would be asking for something that state law itself 

does actually provide in Kentucky and 20 other states.

Ultimately, this whole affair brings up again the question of whether or not government has any place in marriage. There are certainly those in favor of limited government who do not believe anyone other than God or the two individuals involved is necessary to sanction such a union.

For those with a religious objection to homosexual behavior, there may never be any satisfaction but we can have a practical one.

This debate peaked with objections to redefining "marriage." In actuality, no redefinition is necessary: if the government removes the word “marriage” from licenses joining couples in what has been historically referred to as such, any couple, whether same or opposite sex, could be joined in a legal contract that could be designated as a civil union or domestic partnership, with all the rights and privileges traditionally associated with marriage.

"Marriage," or what we think of as  "holy matrimony,” could then be reserved only for religious ceremonies conducted by clergy. Only those who support the idea of same-sex marriage would officiate voluntarily and those who object would be under no obligation to do so.

All would have equal rights under the law without any need to redefine marriage. Everybody wins.

We have largely been embroiled in a misguided debate about religious freedom. In the private sector, it’s time to reconsider the benefit of trying to force people to behave the way we want instead of letting the situation play out, which doesn’t mean remaining silent, but it does mean leaving the government out of it.

The public sector, however, is a different animal. When the right and left have a potential to agree on "limited government," it's a beautiful thing.

Photo Credit: Lisa F. Young /

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