Kim Davis

Rosa Parks. Frankly, much better looking than Kim Davis.

It’s time to weigh in on Kim Davis. The left is solidly against her. The right is divided over her case (she’s the country clerk refusing to sign marriage licenses in Kentucky). She is, after all, herself an arm of government, an elected official; and she is flouting the law. Conservatives don’t like governments taking new powers to themselves, and they don’t like disorder and breaking the rules. On top of that, Davis is not an especially appealing character, as Rosa Parks was—Parks as specially selected for her role on this basis. Even those who think her right on principle, therefore, often hate the optics. “Not the hill to die on.”

Nevertheless, in all honesty, I think she is right. Even though I, in her position, would have no problem with signing those marriage licenses.

It is an established rule of US law, and I think it ought to be, that employers are legally obliged to make reasonable accommodations to respect the religious beliefs of employees. In the Davis case, such reasonable accommodations have now, apparently, been arrived at: her office will continue to issue marriage licenses, but they will no longer go out under her signature. Doesn’t sound at all as though it needed to be made into such a big deal. The fact that it was, and she actually had to spend a week in prison, suggests to me an anti-Christian bias. Such accommodations are common enough elsewhere. Even in states that do not, as Kentucky does, have a Religious Freedom Restoration Act.

This means respecting her qualms does not automatically imply we have to allow far more awkward religious requirements—one correspondent cited an Islamist declaring a conscience right to behead infidels. If there is a slippery slope here, the US has avoided sliding down it for many years. If “reasonable” sounds too vague, it is the standard employed in every criminal trial there ever was: “guilty beyond a reasonable doubt.”

Yes, she took an oath to uphold state laws and the state constitution. That’s a point, indeed. But Davis may not have foreseen, at the time, that the law would be changed in such a way that she would be forced to violate her beliefs. How could she? The state constitution that she swore to uphold actually forbade the issuing of marriage licenses to gay couples. Nor, in fact, has it been amended since. No laws have actually changed. The Supreme Court, instead, has declared the existing laws invalid. Certainly an ambiguous situation.

But more fundamentally, consider this parallel: every officer and every bureaucrat in Nazi Germany took an oath of personal loyalty to Hitler. Yet, at Nuremberg, we held them criminally responsible regardless. We held that it was their moral and legal duty to violate that oath, since following it violated morality and what should have been their conscience.

God’s law is above man’s law.

Yes, Davis has not herself been loyal to the marriage bond. That’s one reason the optics are bad. But that is fish-red, ad hominem, and a low blow. First, this all came before her conversion to Christianity. Second, being Christian has never required or implied a claim to be free from sin.

Davis as felon.

Yes, she “broke the law,” in one sense of that term. Only in one sense, since the wording of the constitution and the laws themselves are actually in her favour. One might argue that it was the Supreme Court that broke the law, far exceeding its legal authority in this matter. They are merely in a position to do so with impunity, as a practical matter, and she is not. Moreover, she has a good legal case that she was acting entirely within the law, in exercising her right to freedom of conscience. That is for a court to decide, after due process.

But let’s allow that she did break the law. Still, as with the Hitler oath above, God’s law trumps man’s law. Yes, Christians are supposed to obey the law. St. Paul, notably, says so. But only within definite limits. In fact, Christianity stands out as not only justifying, but even at times requiring, civil disobedience. Recall that Jesus and almost all the apostles were put to death by the civil authorities as criminals. Luther is strong on obeying the authorities, whomever they may be. That explains much about Germany. But the rest of Christianity leans in the opposite direction.

Civil disobedience in the name of conscience is a long and honourable Christian tradition, not least in America. One might argue, indeed, that America is founded on it.

Finally, no, Davis was not imposing her “religious beliefs” (sic; morality is objective, and not dependent on religion) on others. As a practical matter, any inconvenience to others was fairly minor at worst. At worst, while she was refusing to issue marriage licenses, any couples seeking a marriage license could have gone to the next county. Morehead is a smallish city, 23,000 souls. It is not terribly rare in such places to need to go elsewhere for some amenities. Other county seats are only about 25 miles away in four directions. Therefore, in real terms, nothing was prevented by her actions.

And she did not even have an objection, it turns out, to issuing the licenses, as long as they did not bear her own signature. Unfortunately, state law did not allow her to issue the licenses without signing them.

Yet she was put in jail.

Who is imposing their beliefs on whom here?