Kim Davis, an elected county clerk from Kentucky, is in jail today for contempt of court. Her name is making headlines around the world for her refusal to issue marriage licenses to same-sex couples – or, indeed, to any couples for the time being.
She has persisted in the teeth of a US Supreme Court decree that such couples have the right to be married everywhere in the land, the order of a federal district court judge to start issuing licenses again, and the refusal of a federal appeals court to give her any more time to press her case before she acts on the order.
Her case is simple and well known: to give marriage licenses to same-sex couples would be a serious violation of her religious beliefs, an act of disobedience to God that would sear her conscience. As her lawyer said at a hearing before Federal district court judge David L. Bunning yesterday:
“Today, for the first time in history, an American citizen has been incarcerated for having the belief of conscience that marriage is the union of one man and one woman, and she’s been ordered to stay there until she’s willing to change her mind, until she’s willing to change her conscience about what that belief is … This is unprecedented in American law.”
Mrs Davis is supported by her Apostolic Church community and no doubt many other Christians. Republican presidential candidates Rand Paul and Mike Huckabee have denounced the order that put her jail, Huckabee tweeting that “it removes all doubts about the criminalization of Christianity in this country.”
Now, there may be grounds for arguing that Christianity is being, or is in danger of being criminalised in America, and elsewhere, but we should be careful about pinning the argument on this case. Courageous as her stand is from the point of view of Mrs Davis’ faith, it is hard to defend from the point of view of law.
The new marriage law means that same-sex couples have the right to obtain marriage licenses. Mrs Davis doesn’t have to, and should not have to, issue them personally, but she can and should allow any of her assistants who are willing (and some are) to issue them. Instead, she put a stop to the issuing of all marriage licenses whatsoever by anyone on her office. It seems that she thought in this way to avoid the charge of discrimination.
What she has done, however, is break an oath of office that she would carry out its duties. Then, rejecting a proposal to let her deputies grant same-sex licenses, she has defied a court order to resume issuing licenses herself. Judge Bunning is correct, surely, when he says:
“The court cannot condone the wilful disobedience of its lawfully issued order,” said Judge Bunning, who was appointed by President George W. Bush. “If you give people the opportunity to choose which orders they follow, that’s what potentially causes problems.”
“I myself have genuinely held religious beliefs,” the judge said, but “I took an oath.” He noted: “Mrs. Davis took an oath. Oaths mean things.”
There are orders that should be disobeyed, even at the cost of one’s life or livelihood. Orders to massacre civilians and prisoners of war; orders to torture people; to carry out abortions and euthanasia. And Christians should be the first to accept the penalties. But an order to resume duties which are not a direct attack on life, in a way which involves a personal exemption, is in a different category altogether. It begins to look stubborn, and not particularly Christian.
It is not as if Mrs Davis has no other way of saving her conscience. If she feels that working in an office where other people deal with same-sex marriage licenses makes her complicit in what is morally wrong, she could resign, giving a witness to those around her of the seriousness of her faith and the truth about marriage by sacrificing her job.
This was the course taken by Henry VIII’s chancellor, Thomas More, when the Tudor king insisted on having his way about another marriage issue. More wasn’t keen to be a martyr and he did everything possible to avoid falling foul of the law. Mrs Davis seems to court this kind of fate by holding the county office to ransom.
That is not quite the right way to go about conscientious objection to the new marriage law, according to Ryan T. Anderson, whose objections to same-sex marriage and the Supreme Court’s role in it are well known. He says that there are ways to accommodate conscientious objection without denying people what they have a right to under the law.
North Carolina provides a great example. The state legislature earlier this year passed a law that protects magistrates who object to performing solemnizing ceremonies for same-sex marriages and clerks who object to issuing same-sex marriage licenses. It also makes clear that no one can be denied a marriage license, but magistrates or clerks could recuse themselves from the process behind the scenes should they have sincere objections to same-sex marriage.
Title VII of the Civil Rights Act of 1964 requires the government to accommodate conscientious objectors as best it can. Title VII applies to all employers, including the government, and requires that employers grant reasonable religious accommodations to employees, provided those accommodations don’t create an undue hardship for the employer.
Anderson also quotes law professor Robin F. Wilson who says that a government employee does not, as is often claimed, have to do all of their job or resign. Citizens have a claim to receive certain “services from the state, but they do not necessarily have a claim to receive the service from a particular public servant.”
It would be unfortunate if public discussion and policy on this crucial issue were skewed by a case that is, from many points of view, not a good precedent. Perhaps Mrs Davis could have been better advised by her religious mentors and the Christian law firm representing her.
As it is, journalists keen to find something discreditable in her background have revealed that she has been married four times (to three men). This information, paired with her recent religious conversion, has led to some Twitter shaming, though as Molly Hemingway of The Federalist points out, “declaring a woman a hypocrite for failing to live as a perfect Christian prior to her conversion to Christianity” doesn’t make any sense.
Same-sex marriage doesn’t make any sense either, but it does make certain jobs very difficult and serving our fellow citizens generally, more complex. People are free to make their own conscientious stands against it, but some of these will be more persuasive than others. It is to be hoped that Mrs Davis’ advisors will, for her sake and the sake of the cause, encourage her to soften her current one.
Carolyn Moynihan is deputy editor of MercatorNet.