On Wednesday, Mike Huckabee grabbed a few minutes to wax poetic about Kim Davis, his favorite anti-gay clerk. Huckabee argues, predictably, that Davis should receive a “religious accommodation”—asserting that if the Fort Hood shooter got one in prison, clerks should get one, too.
A few things are worth clarifying here. First, the Fort Hood shooter was not given a religious accommodation. Initially, a judge ordered his beard to be forcibly shaved; another judge later ruled that the court did not have the power to shave the shooter, but her decision had nothing to do with any religious freedom law. Second, Davis didn’t actually argue for an accommodation. She simply refused to issue marriage licenses, and she barred her deputy clerks from doing so. Then, when her deputy clerks finally issued licenses, she crowed that they were invalid without her approval. Allowing deputy clerks to issue licenses was the most reasonable accommodation Davis could have hoped for—and she rejected it.
Third, allowing prisoners to demand religious accommodations has little real impact on anybody else. That’s why the Supreme Court unanimously upheld a federal law granting prisoners extra religious rights. Allowing a county clerk to deny same-sex couples their constitutionally protected right, on the other hand, imposes a serious stigma on the couple, as well as a material burden. That raises sticky equal protection issues totally absent from other religious accommodation scenarios.
Huckabee’s Davis polemic might not have been as insane as Bobby Jindal’s and Rick Santorum’s. But, in its own special way, it was far more inane.
