Kim Davis, the county clerk in Kentucky, got caught between a rock and a hard place.  I’m glad she is out of jail, but sympathy for Ms. Davis should not obscure the real issue at stake in this case.  That issue is whether an elected official can put her understanding of “God’s law” above the constitutional rights of those she was elected to serve.  For one thing is certain: Same sex couples have a constitutional a right to get married.  Five Supreme Court Justices said so on June 26 in the Obergefell v. Hodges decision, and they have the last word.

The wrinkle, of course, is that just like different-sex couples, same-sex couples need a state-issued license.  That is where the local official comes in.

I have no doubt that Ms. Davis is sincere in her religious beliefs, but the First Amendment mandates the separation of church and state.  A theocracy, according to the Merriam-Webster Dictionary, is “the government of a state by immediate divine guidance or by officials who are regarded as divinely guided.”  That isn’t us; the United States is a democracy.

As an elected public official, Ms. Davis took an oath under the Kentucky constitution to “support the Constitution of the United States.”  The right of same sex couples to obtain marriage licenses is a constitutional right.  The question becomes, “What good is a constitutional right in Rowan County, Kentucky, or anywhere else, if you can’t exercise it?”

Ms. Davis says, “I answer to a higher authority, God’s law,” which has an appealing sound to it.  “No one should have to violate their conscience,” some may say.  Others may take the opposite view and say, “she’s wrong, throw her in jail.”

Keep in mind that the judge didn’t send Ms. Davis to jail because she opposes same sex marriage.  He did so because she violated her oath to uphold the Constitution and then defied the judge’s order.

In 1967, the Supreme Court ruled that Virginia’s “Racial Integrity Act,” which prohibited inter-racial marriage, was unconstitutional.  Other than an avowed segregationist, would anyone, endorse a public official’s refusal to issue a marriage license on the grounds that inter-racial marriage is against “God’s law.”  I doubt it, and this case is exactly the same.

There is talk about changing the law to create some sort of a “religious exception.” That is a very bad idea.  If we start enacting laws to accommodate the Kim Davises of the world, we open a door that should stay shut.  A public official who cannot follow the law as a matter of conscience has a choice.  She can delegate responsibility to someone else.  Ms. Davis has six deputies, five of whom are apparently willing to sign marriage licenses.  (The sixth one happens to be her son.)  If for some reason that option is unavailable, she can resign her position.  What she cannot do is effectively overrule the Supreme Court of the United States.

Coincidentally, on September 8, the day the judge let Ms. Davis out of jail, Pope Francis issued new annulment rules, making it simpler for Catholics to invoke the procedures for seeking to invalidate a marriage.  This is the same Pope Francis who, when asked about homosexuality in the priesthood, said, “Who am I to judge?”