Imagine a police officer who has a sincere, deeply-held religious belief that sexual activity between people of the same gender is immoral and contrary to God’s law. Despite the fact that the Supreme Court has held that such sexual activity is constitutionally protected, the officer disagrees with the Court’s decision, defies the Court’s decision, and begins arresting and jailing people of the same gender who the officer knows have engaged in private, consensual sex. The officer is later arrested and prosecuted under 18 U.S.C. section 242, which makes it a federal crime to willfully deprive someone of their constitutional rights under color of law. The officer is convicted and imprisoned.
Is the officer being punished “because he is religious”? Is he being incarcerated because he was “exercising his religious liberty”? Is he being persecuted for his “beliefs”? No, he is being prosecuted because he willfully violated a duly enacted federal law, defied lawful authority, and tried to become a law unto himself by relying on his personal religious views.
Imagine an officer who has a sincere, deeply-held religious belief that contraception is immoral. Despite the fact that the Supreme Court has said there is a constitutional right to contraception, the officer disagrees with those decisions and instead arrests people who have recently purchased and used contraceptives. Can his religious belief justify his actions?
Imagine an officer who has a sincere, deeply-held religious belief that pornography is sinful. Despite the fact that the Supreme Court has said there is a constitutional right to the private possession of adult pornography, the officer believes that the Court’s decision is contrary to his beliefs and says he will not follow it; rather, he will follow God’s law instead. He begins arresting and jailing people who he finds in possession of adult pornography. The police department fires him. Is his firing a way of punishing him solely for his religious views?
Imagine public authorities taking disciplinary or punitive action against any of the following:
a county clerk who has a sincere, deeply-held religious belief that people of different races should not be able to marry one another. Saying that he disagrees with the Supreme Court’s decision that people of different races have a right to marry, the clerk refuses to issue marriage licenses to people of different races; or,
a state official who is responsible for granting permits for firearms. This official, however, develops a sincere, deeply-held religious view about the immorality of violence, and refuses to grant the gun permit even though the applicant is legally entitled to it, saying that he disagrees with the Supreme Court that the Second Amendment protects an individual right to keep and bear a firearm for personal defense; or,
a judge who has a sincere, deeply-held religious view that capital punishment is immoral, even though the Supreme Court has repeatedly held that capital punishment is legally permitted. The judge refuses to allow the state to proceed with any execution, refuses to impose capital punishment when the jury has decided that it should be imposed, and during capital trials, the judge repeatedly instructs jurors on his belief that the death penalty is immoral and that they should never impose it.
Whatever one thinks about Obergefell v. Hodges, or civil disobedience, or the importance of religious liberty, or the need for religious accommodations, Kim Davis is not being punished “because she is a Christian” or for her “religious exercise” or for her “religious beliefs.” And people should stop saying that she is.