The Colorado Springs Gazette, in a September 8 editorial, criticized Rowan County Clerk Kim Davis’ refusal to issue marriage licenses to same-sex couples by observing this is a case of “a public official essentially banning civil marriage in her county.” That’s a fair characterization.

It is also, of course, a case of using a claim to “religious freedom” to discriminate against other citizens in the name of religion. Going beyond simply protecting her own conscience, Davis claims a prerogative to direct her religious discrimination against a specific group of citizens by denying them equal rights and equal protection they are guaranteed by law.

There has been an extraordinary imbalance in this and similar “religious freedom” conflicts that tilts toward awarding the preponderance of rights and freedom to the perpetrator of discrimination. What about the rights and freedom of those discriminated against? Don’t they merit protection?

It is appropriate to look to freethinking Founders such as Thomas Jefferson and James Madison for insight on resolving the kind of conflict Davis has triggered. There is ample evidence that Madison and Jefferson were staunch defenders of the individual’s right to privately practice whatever faith he or she chooses.

But parallel with their advocacy of one’s freedom to practice religion of choice was an equally firm resolve to guard against any person, group or government imposing its favored religion onto others.

Jefferson addressed this most forcefully in his Virginia Statute for Religious Freedom, a document that was revolutionary in its day, not only for America but in the eyes of the world, for its decoupling of church and state. In it he said, “Our civil rights have no dependence on our religious opinions.” He further said withholding rights from an individual on the basis of religious preference “is depriving him injuriously of those privileges and advantages to which in common with his fellow citizens he has a natural right.” He added that such a practice “tends only to corrupt the principles of that religion it is meant to encourage” and ultimately constitutes “a dangerous fallacy which at once destroys all religious liberty.”

In other words, using religion to discriminate eviscerates religious liberty. It obviously also tramples the individual liberty to which nonreligious citizens are entitled.

In his Memorial and Remonstrance Against Religious Assessments, Madison, heralded as the Father of the Constitution, wrote: “Equality ought to be the basis of every law.” He said the proposed religious assessments he was protesting in that document, “violate equality by subjecting some to particular burdens [and] violate the same principle by granting to others peculiar exemptions.”

“Peculiar exemptions” that violate equality is what efforts like those of Kim Davis seek to have granted. In a conflict between equal rights and religious liberty, she wants her claim to “religious freedom” to be honored exclusively, empowering her to discriminate against fellow citizens in religion’s name. But as Madison went on to ask, rhetorically, in Remonstrance: Should any specific religion(s) “be endowed above all others with extraordinary privileges?”

Forces on the religious right have risen to Kim Davis’ defense, in effect saying her religion should be endowed above others with such special privileges. This “special privileges” point is not an exaggeration because even several mainstream churches are accepting of same-sex marriages and willing to perform them; yet Davis wants to use her own religious beliefs to deny even these other churchgoers—these adherents of other religions—their equal access to a marriage license. She clearly seeks an extraordinary privilege. Just as much a privilege as if a Muslim who embraces a Saudi version of Islam and who works in a Department of Motor Vehicles office would have the “privilege” of denying a driver’s license to a woman based on his religious belief.

So history and contemporary understandings of equal rights are not on Davis’ side when she invokes religious freedom as grounds for illegal discrimination. Far better to adhere to the views of Jefferson and Madison, who said it is critical to guard against any religion’s attempts to dominate citizens as a whole or abridge their legal rights. In his Memorial and Remonstrance, Madison warned his political colleagues about the attempt to favor religion with special advantage by saying: “It is proper to take alarm at this experiment on our liberties.”

It’s a warning that is newly applicable today.

By Ken Burrows

October 11, 2015