Missouri Attorney General candidate expresses support for jailed Kentucky clerk

Candidate for Missouri Attorney General Josh Hawley on Friday denounced the jailing of Rowan County clerk Kim Davis of Kentucky and called for more clearly defined protections for religious people in the public sphere.

He called Davis' predicament "tragic," and in a public statement promised if elected, he would issue a legal opinion "protecting county clerks, other local officeholders and businesspeople of faith to the maximum extent possible under Missouri law."

Davis was jailed Thursday for contempt of court after refusing to issue marriage licenses to same-sex couples, citing religious objections.

"[A recorder of deeds in Missouri] should be able to opt out and designate someone else, a deputy or another official, to issue the license instead," he said during a phone interview. "That would protect their constitutional rights and also allow for that license to be issued."

But part of the reason Davis was jailed was because she not only refused to issue marriage licenses, but forbade her deputies from issuing them as well. Five of six of her deputies told Rowan County attorney Cecil Watkins they wished to grant the licenses but were afraid of Davis. They have begun granting the licenses in her absence.

Hawley, a constitutional scholar and professor of law at the University of Missouri--Columbia, cited Missouri Revised Statutes 59.330 and 1.302 as the basis of his commitment to clerks such as Davis. The statutes regard the duties of recorders of deeds and individuals' religious freedoms, respectively.

The first compels recorders of deeds to record "all marriage contracts and certificates of marriage." That would include the marriage certificates of same-sex couples, after the Supreme Court's ruling in Obergefell v. Hodges that legalized same-sex marriage nationwide in June.

Hawley said the two statutes ought to be considered together. The latter, known as the Religious Freedoms Restoration Act, says "a government authority may not restrict a person's free exercise of religion."

In the statute, exercise of religion is defined as "an act or refusal to act that is substantially motivated by religious belief, whether or not the religious exercise is compulsory or central to a larger system of religious belief."

To Hawley, this would include refusal to issue a marriage license on moral grounds.

The statute also states, however, if a governmental authority demonstrates the restriction to the person is "essential to further a compelling government interest, and is not unduly restrictive considering the relevant circumstances," it would be permissible. In this case, forcing a public figure to perform her duties, even though she believes homosexuality to be immoral, would be the "restriction."

Kentucky Gov. Steve Beshear seemed to acknowledge the issuance of marriage licenses to same-sex couples as a compelling government interest when he ordered all Kentucky county clerks to begin doing so shortly after the Obergefell ruling.

Another governmental authority, District Judge David Bunning, did so when he later gave Davis the same order in August. Neither of these actions fall under the purview of Missouri law, but if a similar situation were to arise in Missouri, a case could be made for either side.

Hawley's point is, if he were attorney general, he would argue in defense of such conscientious objectors, issuing a legal opinion on the matter. A legal opinion from the attorney general would be influential but not binding, and not everyone agrees with his interpretation.

Fellow candidate for attorney general Jake Zimmerman said such a move would be out of line.

"The attorney general's job is to enforce the law, not to make it up as you go along," he said. "Marriage equality is the law of the land. If you don't understand that, you shouldn't be running for attorney general."

To some, even the sincerest of convictions shouldn't allow a person to occupy a government position characterized by duties they are unable or unwilling to fulfill.

ACLU of Missouri executive director Jeffrey Mittman said Davis, like any other U.S. citizen, is permitted to attend church where she sees fit, believe homosexuality -- or anything else -- is immoral, and even to petition for laws that reflect her religious beliefs.

But when acting as a public figure, she's obligated to perform the duties of her office, he said. Davis' actions constituted an unacceptable entanglement of church and state authority, Mittman said,

"As a government official, she cannot impose her religious beliefs on others," he said.

Society has taken steps to accommodate the pacifism of Quakers, historically exempting them from conscription, he said.

"We would not have a friend, a Quaker, join the military, but say, 'I want to collect my paycheck and be in the military, but I don't want to participate in war exercises,'" he said. "The accommodation we make is to say that you don't have to be in the military."

The separation of church and state is necessary to protect religious freedoms, not nullify them, he said. Because of this separation, they exist in distinct spheres.

"Have you ever seen a lawsuit filed against the Catholic Church for not allowing women priests? No," Mittman said, adding religions have the authority to set their terms within their spheres of influence.

"Would we [allow] a Catholic mayor, therefore, to say that because he is Catholic, no women could be hired as department heads? Of course not.

"Government doesn't belong in the religion business, and religion doesn't belong in the government business," he said.

tgraef@semissourian.com

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