It goes without saying, as many conservative commentators have argued (see here, here, and here), that liberals who wax sanctimoniously about the “rule of law” in condemning Rowan County, Kentucky, Clerk Kim Davis for illegally refusing to issue marriage licenses to same-sex couples, are being laughably inconsistent. The left cheered San Francisco Mayor Gavin Newsom for illegally granting marriage licenses to same-sex couples in 2004. They defend “sanctuary cities” that defy federal immigration law and local officials who refuse to comply with federal drug laws. In short, they are demonstrable hypocrites.

But, beyond agreement on this collateral point, social and religious conservatives are divided on Davis. Many, like Rod Dreher, have declined to climb on her bandwagon, while others, including David French and Maggie Gallagher, have rallied to her support, albeit with some apparent qualms. For example, Gallagher (a friend for whom I have great respect) has acknowledged that, for better or worse, in the wake of Obergefell same-sex couples cannot be denied licenses, but has argued that an accommodation should somehow be made for Davis – analogizing her situation to that of a prison doctor with religious objections to capital punishment who is required to perform a lethal injection.

I would agree, and would argue that such an accommodation would probably be required by both Kentucky’s version of the Religious Freedom Restoration Act (RFRA) and Title VII of the federal Civil Rights Act (which require “reasonable accommodation” of an employee’s religious practices if it does not cause the employer undue hardship). If Davis were an employee in a large County Clerk’s office – so that if a gay couple walked in while she was on marriage license duty - she could easily swap tasks with another employee for a few minutes. In that case the analogy to the government doctor who objects to doing lethal injections would be apt. But she is the Clerk in a small county who is not only refusing to comply with the law but directing her subordinates not to as well. So the better analogy is to a State Corrections Commissioner with religious objections to the death penalty who refuses to allow anyone in his department to carry out executions legally ordered by a court. Or a County Clerk from a liberal Christian denomination who refuses to issue any gun permits based on the sincerely held religious belief that the Second Amendment and the Supreme Court’s decision affirming it in District of Columbia v. Heller are superseded by the Biblical injunction that “thou shalt not kill.” Or a Unitarian IRS Commissioner who yanks the tax exemption from the National Organization for Marriage (the pro-traditional marriage group that Gallagher co-founded and headed) based on a religious conviction that it “fosters hate.”

The accommodation Davis is seeking is not a simple job swap but the convening of a special session of the state legislature to require revision of the license certificates used in every county to remove the County Clerk’s name -- with associated costs not only for the extraordinary session but for reprinting of forms, etc. No court would or should ever consider such a requested accommodation to be “reasonable.” (To get into the weeds, Eugene Volokh has suggested that if Davis brought a new lawsuit in state court a Kentucky judge could order this relief under the state RFRA without the convening of a special legislative session. But the statewide revision of forms would still be required, and in any event Volokh acknowledges that the judge in Davis’s current federal suit has no power to do this.)

While Davis’s case thus differs markedly from that of a lower level government employee, it contrasts even more starkly with the cases of the private photographers, bakers, florists, etc. who are being forced to provide personal creative services in violation of their consciences for and often at same-sex weddings. I have written that these cases “are perhaps the most frightening assault on First Amendment rights since the end of Jim Crow.” The idea of the state telling photographers what they have to take pictures of is truly chilling. And forcing these creative professionals to choose between their freedom against forced expression and their livelihood, in which they have a constitutionally protected property interest is, I believe, manifestly unconstitutional. By contrast, high-level officials like Davis have no entitlement to their offices, and the forced expression involved in the ministerial act of issuing a license is minimal.

This gets to my real problem with Davis and with those social and religious conservatives who are supporting her. As Dreher has suggested, they are hurting the cause terribly. The baker/florist/photographer cases are where the battle lines are drawn now, and the public, I think, implicitly understands the difference between these cases and Davis’s. That’s why the left and the media are all too happy to try to conflate the two. To the extent we join them in doing this, we will only contribute to turning public opinion against anyone with moral or religious objections to same-sex marriage.