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Law Professor: Davis Can't Evoke Religion To Deny Marriage Licenses

ROBERT SIEGEL, HOST:

Katherine Franke is a law professor at Columbia University where she heads the Public Rights/Private Conscience Project. And she joins us from New York to talk about this some more. Welcome to the program.

KATHERINE FRANKE: Well, hello.

SIEGEL: Kim Davis refuses to issue marriage licenses to same-sex couples. And when she does so, she cites her apostolic Christian faith as the reason that she can't perform her public duty. Does she have any legal ground to stand on?

FRANKE: She has absolutely no legal ground to stand on. As a public official, she's supposed to abide by the law and perform her public duties, which are issuing marriage licenses to qualified couples. Same-sex couples are now qualified to marry in the state of Kentucky, so she is refusing to do her job.

SIEGEL: But are there protections - even for public officials - for some religious convictions that might, in some ways, conflict with someone else's performance of the same job?

FRANKE: Of course. Kim Davis has all sorts of religious liberty rights secured under the First Amendment and under other laws. But they are not at stake in this case. All she's asked to do with couples that come before her is certify that they've met the state requirements for marriage. So her religious opposition to same-sex marriage is absolutely irrelevant in this context.

SIEGEL: Well, talk to us a bit about where there are religious exemptions. That is, who can claim a religious exemption and from what sort of obligation?

FRANKE: Well, say they decided to open up the marriage license bureau on a Sunday and she says I won't work on Sunday because that is my day of religious observance. And if the state of Kentucky said, no, you have to work on Sunday that would probably violate her First Amendment rights. But that's not what's at stake here. What she's really doing is rendering her private religious beliefs public policy. So the same-sex couples in Kentucky are being asked to pay the price of her religious observance.

SIEGEL: If Kim Davis, instead of having a job issuing marriage licenses, were just in private life selling wedding cakes, would she be on firmer legal ground citing her faith to not sell a couple a wedding cake than she is as a public official not signing marriage licenses?

FRANKE: Well, I'll give you a lawyer answer, which is it depends on what state she's in. So in states that prohibit sexual orientation-based discrimination, she can't invoke her religious beliefs as an exemption from complying with, if, say, she were in a pastry shop or something like that. But as an exemption from complying with nondiscrimination laws - in Kentucky, there is no legal prohibition against discrimination on the basis of sexual orientation, so she could refuse service to same-sex couples or to single gay or lesbian people as a florist or a baker. The law doesn't require her to treat people equally on the basis of sexual orientation in many states in this country.

SIEGEL: When the Supreme Court, back in 1954, ordered an end to segregated public schools, there was, in parts of the South, what they called massive resistance. In the commonwealth of Virginia, they essentially shut down the public school system rather than comply. What's different here, or does it strike you as a very similar situation?

FRANKE: Oh, I think it's exactly the same situation. I think that certain people in certain places are changing their view on homosexuality and whether it is sin or perverse or dysfunction and are seeing lesbians and gay men and then same-sex couples as entitled to the same rights as heterosexual people and different sex couples, but not everyone is there yet. And some people base their opposition to equality for same-sex couples or for lesbians and gay men in religion. But they can't use those values as a justification for not performing public functions. So what we're seeing now really in a way mirrors quite clearly what we saw in the 1950s where many communities were more than happy to close all of their pools and playgrounds and public schools rather than having black children and white children play together. And we saw that resistance pass in a short period of time. But in some contexts, we had to bring in the National Guard, as you recall. There was quite a lot of violence. I don't think we're going to need the National Guard in order to get same-sex couples to marry, or at least I certainly hope not. But the case of Kim Davis points out the similarity between what we're going through now and the kind of change in values that we saw in the 1950s and '60s around racial equality.

SIEGEL: Professor Franke, thank you very much for talking with us today.

FRANKE: Oh, it's my pleasure.

SIEGEL: Katherine Franke is a law professor at Columbia University. She spoke to us from New York. Transcript provided by NPR, Copyright NPR.

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