On religious clerks, complicity, and public morality

In Kentucky, a county clerk is in court, over her refusal to allow her office to provide marriage licenses to same sex couples.

She choked back tears at times as she argued that issuing licenses under her name would violate her religious beliefs even if a deputy clerk performs the task in her stead..... 

.... If [the judge] orders Davis to issue licenses, she said she would deal with that when it comes, but resigning is not an option because it would only leave the matter to her deputies.

Because nothing is more important than making sure THOSE PEOPLE can't get married in her county.  Really?  I'm sorry, but your religious beliefs do not trump the law you are sworn to uphold.  Otherwise, Catholic clerks could refuse o issue licenses to previously married people, or refuse to file divorce papers.

An excellent article in the American Prospect looks at the leveraging of religion to allow discrimination in the ongoing culture wars regarding abortion and gay rights.

Laws authorizing health-care providers to refuse patient care illustrate how conservatives are now using the ideas of conscience and religious liberty. States like Mississippi could accommodate the conscience objections of health-care providers while ensuring alternative care for patients. But health-care refusal laws rarely require institutions to provide alternative care; many even authorize providers to refuse to inform patients that they are being denied services that they may want.

That is, the laws privilege the views of the person claiming religious freedom over any rights of the individual being denied service.

Now, as laws recognizing same-sex marriage spread, religious conservatives have begun to look to health-care refusals as an inspiration and a model for restraining another development they could not entirely block.

But there's a switch.

Today’s conflicts over marriage and health care feature a special kind of conscience claim—claims about complicity. The employers in Hobby Lobby objected that the ACA forced them to provide “insurance coverage for items that risk killing an embryo [and thereby] makes them complicit in abortion.” Similarly, businesses in the wedding industry object to “facilitating” same-sex weddings. ....

So the issue, then, is not what the person himself is doing, it's that he wants to have a bright line between himself and that Other One of whom he disapproves.

Because complicity claims single out other citizens as sinners, their accommodation can inflict targeted harm. Complicity claims are increasingly entangled in culture-war politics as a means of mobilizing the faithful against the practices of people who depart from traditional morality. For these reasons, accommodation of the claims is fraught with significance not only for the claimants but also for those whose conduct the claimants condemn. These third-party effects need to be taken into account in weighing whether and how the government should accommodate complicity-based claims of conscience.

Is there a way around it?  The authors think that Hobby Lobby actually was written sufficiently narrowly that it will help. They conclude (my emphasis)

One group of citizens should not be singled out to bear significant costs of another’s religious practice. The government may have to limit complicity-based conscience claims to avoid harming third parties who do not share the claimants’ beliefs. This approach respects claims to religious freedom and the rights of other citizens—standing by conscience while recognizing its new role in culture-war conflicts.

Meanwhile, we'll see what happens in court in Kentucky.