Rowan County is located in the US state of Kentucky and has a population of just over 23,000 inhabitants. Kim Davis is the county clerk. She was elected to this position and, hence, cannot be dismissed but only impeached by the State legislature. Her duties include issuing marriage licences.

Last June 26, the Supreme Court of the US declared that same-sex marriage was legal across all states. Thus, the 14 states that still had bans on same-sex marriage could no longer enforce them.

Christian conservatives in the US condemned the decision with the former governor of Arkansas and Republican presidential hopeful Mike Huckabee calling the decision of the Supreme Court “an out-of-control act of unconstitutional, judicial tyranny”.

Davis was then a Democrat. She is also an Apostolic Christian. Apostolic Christian beliefs of the Church are rooted in a literal interpretation of the Bible.

After the Supreme Court decision in June, Davis has, citing religious grounds, been refusing to issue marriage licences to same-sex couples by introducing an office policy whereby no marriage licence was to be issued to any couple. She stated that “to issue a marriage licence which conflicts with God’s definition of marriage, with my name affixed to the certificate, would violate my conscience”. She described it as “a heaven or hell decision”.

Two gay couples and two straight couples filed a lawsuit against Davis as a result of which the county clerk was ordered by district judge David Bunning to abide by the decision of the Supreme Court.

The governor of Kentucky, Steven Beshear, also ordered all county clerks to comply with the Supreme Court’s ruling. Davis continued to refuse to do so and, on September 3, was jailed for contempt of court. Bunning described the county clerk’s “sincerely held beliefs” as “simply… insufficient” to justify disobeying the court order.

Davis returned to work on September 14 after having been released from jail on condition she does not interfere with her deputies who started issuing licences to all eligible couples, including gay couples. Huckabee had visited Davis in jail and appeared by her side as she was released. On September 25, Davis announced that she and her family were switching to the Republican Party.

We really need to foster a culture that allows for greater tolerance and genuine respect for diversity

The underlying justification which Davis put forward to support her stand was that were she to issue marriage licences to same-sex couples, she would be violating her religious beliefs. This would, according to her lawyers, “substantially burden” her First Amendment freedom of religion.

The First Amendment to the US Constitution guarantees freedom of religion, expression, assembly and the right to petition. It specifically prohibits Congress from enacting any law for the establishment of any religion, or prohibiting its free exercise. The free exercise clause would also seem to allow for violation of laws, as long as that violation is made for religious reasons.

Bunning did not accept that line of defence. “Her good faith belief is simply not a viable defence,” he stated, adding that he too had “genuinely held religious beliefs” but that he had taken an oath of office to uphold the law. The judge added that “Mrs Davis took an oath” and that “oaths mean things”. He stated that “personal opinions, including my own, are not relevant today” and that“the idea of natural law superseding this court’s authority would be a dangerous precedent indeed”.

Bunning is the son of a former Republican senator and was appointed to the bench by President George W. Bush. He is a practising Catholic.

During his recent visit to the US, Pope Francis avoided getting embroiled in the issue of same-sex marriage. In his historic address to the US Congress on September 24, he did refer to his concern for the family “which is threatened, perhaps as never before, from within and without. Fundamental relationships are being called into question, as is the very basis of marriage and the family”.

He was not explicit though it is clear that he was referring to, among others, same-sex marriage.

On the flight back to Rome, Terry Moran, from ABC News, asked the Pope a direct question regarding government officials who, for reasons of conscience, do not feel that they are in a position to exercise their public duties in, for example, issuing marriage licences to same sex couples.

In his reply, Pope Francis, while making it clear that he did not have in mind all the possible existing cases of conscientious objection, stated that conscientious objection is a right that is part of every human right and that if a person is not allowed to exercise it, s/he is being denied his/her right. He emphasised that this also applies to government officials.

In his many public speeches in the US, Pope Francis was very careful to avoid adopting a controversial or confrontational stance.

I still feel rather uneasy when individuals, particularly government officials, start raising issues of religious belief to deny other individuals their rights under the law of the land. Individuals have a right to uphold their beliefs. However, such beliefs should not be an impediment for other individuals to fully exercise their rights in accordance with the Constitution and with the law of the land. Moreover, we really need to foster a culture that allows for greater tolerance and genuine respect for diversity.

When, as it was reported in some sections of the media, outgoing president George Abela had some issue with signing the Civil Unions Bill into law last year, the government respectfully allowed a few weeks to pass for his term of office to come to its natural end and only presented the Bill that had been approved by the House of Representatives to Abela’s successor once she had taken office.

Last Monday, Kevin Aquilina, dean of the Faculty of Laws at the University of Malta, wrote an interesting commentary in this newspaper in anticipation of the situation that could arise if the proposed Bill 113 which, among others, would do away with the provisions of our Criminal Code on the vilification of religion, is approved by the House of Representatives.

He anticipates a scenario where the President might entertain “constitutional doubts as to whether she should assent to the Bill”. The issue here would not seem to be one of conscientious objection on grounds of religious belief, which could arise should she entertain any personal reservations on the legislation in question, to which Banning’s reply would be “Personal opinions, including my own, are not relevant today” but a constitutional dilemma since Aquilina holds that Bill 113 is inconsistent with the Constitution.

He refers to the President’s oath of office to “preserve, protect and defend” the Constitution and its consequences on her assenting or not to a Bill approved by the House of Representatives that she would consider “between herself and her conscience” to be inconsistent with the very Constitution she has sworn to “preserve, protect and defend”.

However, that very same Constitution obliges the President to signify “without delay”that she assents to any Bill presented to her. The Constitution uses the word “shall”, meaning that she has no choice but to assent.

As Aquilina rightly implies, the true guardian of the Constitution is not the President but the judiciary because it is only the courts that can declare a law enacted by Parliament or any provision thereof tobe unconstitutional.

In a country that upholds the rule of law and the separation of powers, this is how it should be.