I appreciate Davis's religious-inspired convictions about marriage. As long as religious liberty is part of the American ideal, she should be able to promote and practice these views without government persecution. I understand her moral dilemma and realize that the Obergfell decision on same-sex marriage has caused much anxiety and confusion for the defenders of traditional marriage. Davis is a woman of faith who is trying to find the best way to honor her deeply-held religious convictions.
But I don't think Davis has much legal ground to stand on here. I have no doubt that the Supreme Court will eventually need to hear a case that pits same-sex marriage against religious liberty, but I don't think this will be that case. Davis works for the state and thus must enforce the laws of the state. She does not work for a church or a religious organization.
As a historian, the Davis case leads me back to a question I have been thinking about for a long time: Is America a Christian Nation? Even if one argues that the United States was founded as a Christian nation, it is very hard to make the case that it still is a Christian nation today. The United States does not privilege Christianity and thus (in the wake of Obergfell) does not privilege traditional Christian views on marriage. In this sense, the United States is a secular nation. Many of my fellow evangelicals will cringe when I use that term. By secular I do not mean that religion cannot contribute to the public good or should in some way be eradicated from American life. I am simply saying that religion is not the basis for the laws of the United States.
Mark Silk has some interesting thoughts on the Davis case at his blog, "Spiritual Politics." Here is a taste:
No doubt, Christians have long been faced with a dilemma regarding obedience to civil law. On the one hand, there is Jesus’ oblique response to “render to Caesar the things that are Caesar’s,” and Paul’s more specific:
"Let everyone be subject to the governing authorities, for there is no authority except that which God has established. The authorities that exist have been established by God. Consequently, whoever rebels against the authority is rebelling against what God has instituted, and those who do so will bring judgment on themselves."
On the other hand, the Early Church valorized its martyrs for defying Roman authority and Protestant theologians found ways to work around the Pauline prescription. Kim Davis is at once a governing authority and a person rebelling against governing authority.
For government employees in America — be they county clerks, public school teachers, or members of the military — religious liberty is conditioned by functioning in a governmental capacity. The longstanding American answer to any conscientious objection they may have was stated straightforwardly by Democratic presidential candidate John F. Kennedy, in his famous speech to the Houston Ministerial Association 55 years ago this month:
"But if the time should ever come — and I do not concede any conflict to be remotely possible — when my office would require me to either violate my conscience or violate the national interest, then I would resign the office; and I hope any conscientious public servant would do likewise."
More recently, Justice Antonin Scalia took a similar position regarding a judge unable to uphold a law he or she conscientiously opposes.
"[I]n my view the choice for the judge who believes the death penalty to be immoral is resignation, rather than simply ignoring duly enacted, constitutional laws and sabotaging death penalty cases. He has, after all, taken an oath to apply the laws and has been given no power to supplant them with rules of his own."
ANOTHER ADDENDUM: Charles Haynes of the Religious Freedom Institute of Newseum Institute offers a possible compromise.