By George Panichas
'Old Jim," as everyone knows him, has been responsible for issuing gun licenses for as long as his county job has existed. Jim is a well-liked, affable, and devoutly religious fellow who does his job efficiently and well; he rarely makes an error.
But Jim's religious commitments have created something of a problem. The tenets of his faith, he has discovered, prohibit the possession and use of guns by women. So recently, when several women have applied for licenses, as is consistent with their Second Amendment rights, Jim has refused to issue them. His freedom of religion, he believes, exempts him from doing what is contrary to his religious convictions, and he feels that the county cannot require him to act against these convictions.
The problem can be worked around so long as someone else can take over for Jim, but the county is small, and there often is no one available to step in - that is, no one who doesn't share Jim's beliefs. So the question of whether Jim can be forced to issue gun licenses is now before the county commissioners.
As everyone knows, the First Amendment requires respect for religion, especially in the context of "the free exercise thereof." But the amendment also prohibits laws "respecting an establishment of religion." So there would certainly seem to be limits on Jim's appeal to religious freedom. He cannot legitimately expect that the county will take his particular religious commitments and establish them as governmental policy.
No one doubts the sincerity or depth of Jim's beliefs, but sincerity and depth do not and should not transform religious commitments into law. That is exactly what the First Amendment protects citizens against. No matter how deeply or widely held a religious belief may be, it has no special legal status; such beliefs do not trump properly enacted laws, specifically the laws that are implied by fundamental constitutional rights.
Now the First Amendment has been taken to require an appropriate accommodation of religion. And this is certainly part of what the "free exercise" clause is all about. So the county commissioners can't stop Jim from attending his church or acting in accord with the (legally permissible) requirements of his faith. Nor can they stop him from stating publicly his opposition to women having guns.
But the accommodation of religion must be neutral. That is, accommodating Jim's beliefs cannot require impositions on the rights of others. Accommodation requires neutrality, and Jim's religious commitments cannot be given priority over the rights of other citizens.
This is important because it shows that Jim has no legitimate complaint when he is required to act in accord with the terms of his job. His religious beliefs are being respected to the appropriate degree, a degree that is necessarily limited by the rights of others. Religious commitments do not exempt a person from his civic duties, especially when such an exemption entails a violation of the rights of others.
The fictitious story of "Old Jim" is designed to teach a lesson that is especially appropriate given the real case of Kim Davis, a clerk in Rowan County, Ky., who has, even after the Supreme Court declined to intervene on her behalf, refused to issue marriage licenses to same-sex couples. Her situation is relevantly analogous to that of Old Jim. Same-sex couples have a constitutionally protected right to marry, and the Supreme Court has properly recognized that the denial of this right is an insult to gay and lesbian citizens.
As Justice Anthony Kennedy has consistently argued, marriage inequality demeans same-sex couples and their children, and does so in a way that violates their constitutional rights. As we would be appalled if Jim were denying gun rights to women or, for that matter, if a state were denying the right to marry to interracial couples, we should be equally appalled should Davis' religious beliefs be allowed to impose inequitable and impermissible burdens on certain citizens - those whose rights are out favor with Davis' religion.
Of course, if people with religious commitments feel they cannot, because of their religious commitments, issue gun licenses to women or marriage licenses to same-sex couples, they may refuse to do so. But they cannot legitimately expect others to accept infringements on their constitutional rights only because of these religious commitments.
The constitutional rights of Americans are protected against infringements emanating from even the most deeply held religious beliefs. Indeed, abandoning this commitment closes the door on a reasonable pluralistic democracy and opens it wide to an oppressive theocracy.