Kim Davis, the Kentucky county clerk who has staged a weeks-long campaign of resistance to marriage equality, came under fire from an unexpected source on Tuesday — the conservative Heritage Foundation.
Tuesday morning, Davis refused to issue a marriage license to a same-sex couple despite a recent order from the Supreme Court denying her request for a temporary stay enabling her to ignore the Constitution. Just a few hours later, a federal judge ordered her to appear in court this Thursday, where she is likely to be held in contempt.
According to Ryan Anderson, Heritage’s most visible anti-gay voice, Davis is indeed wrong to refuse to issue marriage licenses altogether in order to spite same-sex couples who wish to marry. “The citizens of Rowan County have a right to receive in a timely and efficient manner the various government provisions—including licenses—to which they are entitled,” Anderson writes for one of Heritage’s websites.
He adds, in an argument that closely maps criticisms of the Supreme Court’s Hobby Lobby decision, that “[s]aying your religion requires your entire office to stop issuing marriage licenses to everyone . . . cannot be reasonably accommodated without placing undue hardships on the citizens unable to receive their licenses in their county and forced to drive to another.”
Anderson’s solicitude for the Constitution, it should be noted, only goes so far. He devotes much of his piece denouncing Davis to an alternative proposal that permits individual state officials to recuse from issuing licenses to same-sex couples while also “mak[ing] clear that no one can be denied a marriage license.”
This proposal is unconstitutional. As the Supreme Court explained in Obergefell v. Hodges, the Constitution “does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.” So if an opposite-sex couple will be served by whichever clerk happens to be on duty when they arrive seeking a marriage license, a same-sex couple must be allowed to obtain a license on the same terms.
Nevertheless, the fact that as prominent an anti-gay luminary as Anderson believes that Davis has gone too far is a sign of just how thin a limb the Kentucky clerk now finds herself upon.