Kim Davis, the Kentucky County Clerk, was recently jailed for refusing to issue marriage licenses to anyone, regardless of sexual orientation. Some have compared her situation to that of Charee Stanley, a Muslim woman who filed a discrimination lawsuit against Express Jet, her former employer. Due to her religious commitments, she could not serve alcohol, and as such she set up an arrangement with her coworkers to serve alcohol on her behalf. Although the arrangement was working well, she was put on administrative leave after a coworker complained about her wearing a hijab at work. It is this incident that led to her lawsuit. Some writers have asserted that having a favorable reception to Stanley’s case but not towards Davis’s situation means employing a double-standard.
When we talk about double-standards, I think we’re talking about this: given two agents who act or desire to act in identical or significantly similar ways, we apply two different sets of standards regarding whether or not they ought to be allowed to act in their desired way, even though their situations or capacities, in as much as they are relevant to the considered act, are significantly similar. For example, suppose we have a set of twins, both of whom are sixteen years old. They both have good grades, are responsible, etc. However, only one of them is allowed to drive/have a license, and this in spite of the fact that their parents have enough money to give both of them a car. This is clearly a double-standard, and probably a morally objectionable one. Suppose we change the scenario just slightly, such that the parents only have enough money to give one of them a car. Is this a double standard? If it isn’t, it’s precisely because there’s a circumstance whereupon it makes sense to treat one agent differently from the other, but the circumstance belongs to the third party who needs to make a decision between two agents. With all that being said, here’s my thesis, if you can call it that: there is no double-standard at work between Davis’s situation and Stanley’s case.
If there’s a double-standard at work between these two cases, their actions and the circumstances surrounding their actions should be significantly similar. Regarding Davis, the action in question is refusing to issue marriage licenses to homosexual couples (and heterosexual couples, but she really just cares about the former group). Regarding Stanley, the action in question is refusing to issue alcoholic drinks. I don’t think these actions are similar. Davis is refusing to issue a license that would give individuals access to a social institution that has great significance in American culture at-large and, perhaps subsequently, in a wide variety of social circumstances. In other words, she is refusing to provide a service that, if rendered, could have lifelong implications for the relevant couples. Furthermore, her refusal has a significant emotional impact on those seeking a marriage license.
Stanley is refusing a service whose significance is smaller: alcoholic drinks do not have nearly as much cultural or social significance as marriage. For instance, one’s having an alcoholic drink will not change their tax status, nor will it automatically change the attitudes people have towards them (i.e. marriage makes people seem “mature” or makes it seem like they “have their life together”). This is not to say that there is no social significance attached to alcohol at all. To deny that would be to deny the seriousness of issues like drunk driving and alcoholism; it would also be to deny the fact that, in America, coming of drinking age is perceived as cause for celebration. However, one’s coming of age does not automatically entail huge life changes, save for having a pre-disposition towards alcoholism or being involved in a terrible accident thereafter. Unlike marriage, there is not a system of benefits/privileges attached to drinking alcohol. Although drinking alcohol is surely glorified in American media, it is not extolled as a virtuous institution nor is it perceived as the bedrock of society. Drinking alcohol, in other words, lacks the same kind of cultural significance that marriage possesses. Furthermore, unlike the refusal to issue a marriage license, refusing to serve someone alcohol is a mere annoyance; being told that someone else will have to bring you a drink is not likely to be a heartbreaking refusal, like refusing someone a marriage license would be. Thus, Stanley’s action is dissimilar from Davis’s action in virtue of its impact and the significance of its object.
What about the circumstances surrounding their actions? The difficult thing here is determining what the relevant circumstances are. I’m not convinced that the constitutionality of the Supreme Court’s ruling is relevant, but let’s suppose it is relevant. Some have argued that the Supreme Court’s ruling is unconstitutional, insofar as this sort of decision ought to be made by Congress or on a state-to-state basis. Let’s suppose those people are right.
Davis could then argue, on constitutional grounds rather than purely religious grounds, that she has a duty not to issue licenses to homosexuals because the Supreme Court overstepped its constitutional boundaries. Stanley obviously doesn’t have the same thing going for her, although she is able to appeal to her First Amendment rights and discrimination law (indeed, that’s what she did). In a very broad sense, there seem to be legal factors that they could appeal to in order to explain/justify their decisions. I’ll leave it at that, because there are personal and/or professional circumstances to consider.
Let’s start with the professional circumstances. I took the liberty of looking up the duties attached to Kentucky’s County Clerk position. Here’s the short of it: issuing marriage licenses is just one among many of Davis’s duties. Furthermore, she could have delegated those duties to a deputy. Stanley’s situation appears to be similar, at least at first glance. Doubtless, serving alcohol is just one among many of her duties. Obviously, a situation was also created, if only briefly, where that duty was delegated to one of her coworkers. So we have a similarity between their professional circumstances.
There is a way in which their professional circumstances differ, and it’s primarily because of their personal circumstances. Obviously they are both devout religious individuals, and that bears upon their work decisions and requests. From what I understand about Davis’s situation and decisions, it’s not just that she personally was refusing to issue licenses, but that she refused to allow her deputies to issue those licenses. One proposed solution was that instead of having her name on the licenses, it simply be stamped with something along the lines of “Acknowledged by the State of Kentucky” — or something along those lines. I don’t think that would solve her crisis of conscience. She would obviously be approving of those licenses on behalf of the state. No matter what the stamp says, I don’t think she would be able to disassociate her personal beliefs from the act of approval on a subjective level. Furthermore, even if she delegated the duty to deputies, I suspect that she would continue to have a crisis of conscience: she would be authorizing her coworkers to do something that she finds either unconstitutional or immoral. Again, I think it would be difficult for her to disassociate herself from that act — indeed, she told her deputies not to issue licenses. It seems she can’t disassociate herself from her deputies’ acts. One way she could solve her crisis of conscience while hanging on to her job is changing her beliefs, but she isn’t likely to do that. She could solve her crisis of conscience by resigning, but obviously she won’t do that either. In other words, there are four ways for her to solve her crisis of conscience, but I don’t think she’s comfortable with any of them. On the other hand, there is a solution for Stanley’s situation: her employer continues with the setup wherein one of Stanley’s coworkers serves alcohol on her behalf. This setup seems acceptable to Stanley, since she wishes to continue working there. In summary, there is at least one way in which their professional and personal circumstances differ: there exists an arrangement for Stanley’s concerns that allows her to hold on to her job and would not require her to compromise her conscience; there doesn’t seem to be a solution of that sort for Davis.
Although their professional and legal situations seem fairly similar, there are some dissimilarities contained therein due to their personal circumstances. We could go back and forth about the degree of their dissimilarities, but we really don’t need to. As I said earlier, their circumstances and actions need to be similar in order for a double standard to obtain. Even supposing that their circumstances are similar enough, the actions they are taking are very different from one another in virtue of their impact and social significance. Thus, it is false that their circumstances and actions are similar enough to warrant the charge that there’s a double standard at-play. Hence, we can conclude that there is no double standard being employed.