By Kevin Vallier1
Kim Davis, a county clerk in Rowan County, Kentucky, has refused to certify marriage certificates for same-sex couples. She has also forbidden her deputies from doing likewise. She requests an exemption from issuing these certifications on religious grounds. She’s not getting one. She’s in jail until she resigns or is removed from office.
Aaron and Melissa Klein, wedding cake bakers in Gresham, Oregon, refused to bake a wedding cake for a lesbian couple. They requested an exemption from Oregon anti-discrimination law on religious grounds. The state of Oregon denied the exemption. The Kleins were fined $135,000 as a result. They were fined $135,000 for doing so.
I think that the Kleins morally deserve an exemption but Davis does not. Here are five differences between the two that I think justify my judgment:
- Kim Davis was elected to her position. The Kleins were not.
This distinction matters because the Kleins were genuinely minding their own business, whereas Davis was elected with the understanding that she would mind the public’s business as represented by the law.
- Kim Davis is paid by the taxpayer. The Kleins are not.
Kim Davis’s salary is paid for by the public, including many same-sex couples who want marriage certificates. The Kleins make their money entirely voluntarily. This means that Davis simply lacks the right to use her office in ways that frustrate the wishes of her involuntary customers. The Kleins, on the other hand, have not benefited in any direct way from the resources of the lesbians they declined to serve.
- Kim Davis harms gays and lesbians. The Kleins merely offend.
As John Stuart Mill taught us, any free society must distinguish between harms and offenses. We have trouble with that distinction, but it is critical for freedom. When Kim Davis refuses to certify a same-sex marriage, that couple can be denied the enormous benefits that come along with it. Davis sets back their interests. But the Kleins merely refused to bake someone a wedding cake; this action does not set back their core interests. Their actions may offend, but they do not harm the couple on any sensible understanding of harm.
- Kim Davis swore an oath to uphold the law. The Kleins did not.
Kim Davis is breaking a legal vow that she made voluntarily. The Kleins swore no analogous oath.
- Kim Davis refused to allow her willing deputies to serve gays and lesbians.
One of the most offensive features of the case is that Davis has refused to allow her deputies to certify same-sex marriages. I suppose she would defend this action by arguing that allowing them to do so would also constitute an endorsement of the marriage. This strains credulity, to say the least. Allowing her deputies to serve same-sex couples is not a way of being complicit in same-sex marriage.
Fortunately, in her absence, her deputies have disobeyed her.
Putting Davis in jail is overkill. She should instead be barred from going to work. But she does not deserve an exemption.
The article first appeared on Bleeding Heart Libertarian.