A Faithful Belief in the Law Of Unintended Consequences

Kentucky may be the Tennessee of the 21^st century. While I doubt that the Kim Davis – Rowan County Clerk’s office incident will spawn a play or motion picture, it may be setting a precedent that has interesting implications. At this writing the situation revolving around the ‘conflict’ between the right to marriage equality versus the right to religious freedom has apparently settled into a proclaimed victory by both sides. Certainly the Constitutional right to equal treatment regarding same-sex marriages is unaltered and required despite the clerk’s refusal to perform the function herself; and the clerk seems satisfied to just not engage in fulfilling that function within her office while allowing other office personnel to process and approve the licenses.

At one level this might be viewed as a form of ‘reasonable accommodation’ for her religious beliefs. Although, to fulfill the spirit of the legal basis for that position it would seem to imply that her religious beliefs are to be considered a disability recognized under another law. This does not seem reasonable since religious beliefs are deemed a normal aspect of our civil lives. So it would seem that the accommodation is made more in alignment with another law that supports and permits social accommodations to individual’s religious beliefs and traditions. However in neither case of making an accommodation does its underlying supportive law allow for a public official to not fulfill their official duties.

So the question to be considered is what are the ramifications of the current accommodation or ‘stand-off’? Just because this case may be considered settled, as long as no one attempts to introduce yet another lawsuit related to a subordinate issue like: challenging the legitimacy of the issued licenses, or creating a hostile work environment if the issue were to surface in her office; there can be subsequent effects for the precedent that is being accepted. In other words, what are the Law of Untended Consequences that follow from this state?

If one elected official can decide individually based on a religious belief what governmental functions and duties they are permitted to refuse to perform, how wide ranging is that individual’s discretion in ignoring the law? No one can say that this objection only applies to this one duty but no others because how would anyone know? With the precedent that it’s permissible to reject a function that offends your beliefs then at any time another law might be just as offensive or even more so to one’s beliefs. In some cases this would become apparent immediately upon refusal such as when the Clerk’s office refused to issue marriage licenses; however, not all deviations from adhering to the law need be so obvious. If the Clerk determined that following a procedure wasn’t proper and allowed a filing to be approved that would have been rejected is procedures were followed, who would know or perhaps complain? The unintended consequence, we have a precedent that approves of a public servant not following the law.

Next effect that can follow from this precedent: does the right to not have to follow the responsibilities of one’s office extend to all levels of government? Can the Clerk’s staff operate independently of the Clerk’s positions on policy because of their religious belief? This would mean that there is no equality of the law since it now depends upon the whims of those public servants who are paid to follow their interpretations of religion and not the fundamental principles of our American system of government. Now if you think that having a horde of public servants running wild with our laws is disturbing, imagine the consequences on the other end of the public servant spectrum; let’s think state and federal legislators, executive department heads, state governors or the president.

Why an opportunistic politician might even deduce that they could justify any decision, policy or action simply by citing their religious belief that compels them to follow the ‘laws of God’ which have supremacy over the ‘laws of the land’. Now I know that no one would think any of our politicians would ever do such a clearly unconstitutional act since they took an oath of office sworn before their respective deity of choice. But now there is a precedent that says there really isn’t any requirement to follow the Constitution not even if you are a strict interpretationist.

I keep wondering if this was the reason that the Founding Fathers were so insistent that the government must avoid putting a governmental stamp upon civil enforcement of a religion’s view upon the public. Allowing a public servant to use a religious belief to negate a law is effectively recognizing that religion at the exclusion of others. So a consequence of the reasonable accommodation becomes a crack in our American principle of religious freedom. It cannot be possible for the government to support one religious view that contradicts another religious view on the same question without overtly ‘establishing one religion’ within the context of the law.

There might be a motion picture concept in this notion after all, but it’s not a story about the self-appointed clerk of the law but about the willful forfeiture of a sacred American principle and the slow corrosive impacts that can proceed from there.