I have argued strenuously that private individuals, including businesspersons, have a moral right, and should have the legal right, to discriminate. For example, when Liberty Ridge Farm, a banquet hall and catering business, refused to host a gay wedding and was subsequently sued and fined under New York’s laws banning discrimination based on sexual orientation, I defended the Liberty Ridge owners’ right to refuse the gay couple (though not the morality of their discrimination—See my TOS post Gay Marriage: The Right to Voluntary Contract, Not to Coercive “Contract”).
But how does this viewpoint on discrimination apply to the case of Kim Davis, the Rowan County, Kentucky clerk who was jailed in contempt of court for refusing to issue marriage licenses to gay couples in defiance of the law? In short, it doesn’t apply. Why? Because Liberty Ridge Farm is a private business. The Rowan County Clerk is a government position.
Government has a fundamental duty to protect individual rights, including the right to irrationally discriminate, such as on race, gender, or sexual orientation. But the government itself can not discriminate. The government should always apply the laws equally to all persons at all times. The personal opinions of individuals in their capacity as government officials is irrelevant to their duties as employees of the government. When the Declaration states that “all men are created equal” possessing unalienable rights, and that “to secure these rights, governments are instituted among men,” it means that all individuals are equal regarding their rights under the law. Rights precede government, so a government—whose sole purpose is to protect individual rights—may not arbitrarily decide whose rights to protect and whose not to protect.
Kim Davis and her defenders are claiming that her right to religious freedom and conscience justifies her actions. But her religious freedom is not at stake. She has an inalienable right to her religious beliefs, and to act on her beliefs so long as her actions don’t violate the rights of others. But her right to religious freedom does not give her the right to impose those beliefs on others through government coercion. Davis’s private religious convictions do not automatically extend to government action, and given that people cannot marry without a government license, Davis’s refusal is issue the licenses violates the rights of consenting adults seeking to get married.
The basic issue is not freedom of conscience. It is the proper role of government. The government should not be in the business of issuing marriage licenses. But as long as it does, its officials must not discriminate on the issuance of those licenses. Davis thus had two choices; set aside her religious convictions and perform her duty as a government official, or quit. Short of that, she should be fired.
America the Undemocratic