The US Constitution guarantees freedom of religion.
Exactly what is meant by the term ‘freedom of religion’ varies widely from country to country and even person to person. Even in one country, there are differences of interpretation.
The most notable case at the moment is that of an elected clerk in the USA state of Kentucky.
Quoting her right to religious freedom under the constitution’s first amendment, Kim Davis has steadfastly refused to issue wedding licences to single-sex couples. As an Apostolic Christian, she is opposed to such marriages. However, since the US Supreme Court ruled in favour of gay marriages, she has refused to issue ANY licences.
A week ago, having once again refused to comply with a court order to resume issuing licences, she was jailed for contempt of court.
So, just what is the law? Well, the first amendment does guarantee all citizens the right of freedom of religion. But the question seems to be more about just how far you can take that. Can you legally choose to exercise your freedom to the detriment of others? Can an elected official choose to refuse to carry out an element of her duties because of her own beliefs?
The judge thinks the answer to both questions is NO. But is he correct or do the lawyers acting for the clerk have a valid argument?
Now, here it must be pointed out that I am no lawyer. My training has been as a journalist, my legal training only equates to media laws such as libel. It must also be realised that being British, I am not well versed in the intricacies of the US judiciary system.
Having said all that, though, there is one Supreme Court ruling which seems to fit this case perfectly, saying “Freedom of religion means freedom to hold an opinion or belief, but not to take action in violation of social duties or subversive to good order.”
In Reynolds v. United States (1878), the Supreme Court found that while laws cannot interfere with religious belief and opinions, laws can be made to regulate some religious practices (e.g., human sacrifices, and the Hindu practice of suttee). The Court stated that to rule otherwise, “would be to make the professed doctrines of religious belief superior to the law of the land, and in effect permit every citizen to become a law unto himself. Government would exist only in name under such circumstances.”
I may be wrong, not being an expert, but as a layman that means to me that the clerk in question can have whatever beliefs she likes but cannot legally let those interfere with the duties of the office she holds or allow them to subvert good order. In short the doctrines of her religious beliefs are cannot be treated as superior to the law of the land.
I feel that the clerk has only three options to choose between:
- To obey the court by issuing licences despite her private religious objections
- To resign as she cannot fulfill the duties of her office;
- To stay in prison while her legal team fights on.
We’ll just have to wait and see how all this turns out.
In EU countries, freedom of religion is guaranteed under the terms of the European Convention on Human Rights that have been put into national laws, for example the UK’s Human Rights Act.
The ECHR states that everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
The freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
That appears to mean that if the Kentucky clerk was making the same stand in Europe, she would run foul of this law too.