Kentucky Clerk of Court Kim Davis is free, but it remains to be seen whether she’ll stay that way. The judge ordered that she be released from jail on one condition: She must allow her deputies to continue issuing marriage licenses to gay couples. Davis’s attorney has not said what Davis will do when she returns to work, only that she won’t betray her conscience. Her conscience, to date, has not allowed her deputies to issue the licenses.
The controversy swirling around Davis has created a divide within Republican ranks (as if it needed any more). On one side are those who stand with Davis, calling her a religious freedom fighter. GOP presidential candidate Mike Huckabee even said he would go to prison on her behalf. On the other are those who consider her a lawbreaker who deserves jail.
Both sides could learn something from the other because both are right, depending on how you look at the case. If you see it as being solely about religious liberty and the rights of religious objectors to an established law, then you will come to one conclusion. If you see it in a larger frame, as resistance to an unjust law that needs to be overturned, you will come to another.
Once people consider these two perspectives regarding the Kentucky case, the divide might begin to close. Or, which often happens in politics, it might make it even wider. Whichever the case may be, some clarity about these two perspectives needs to be made.
Consider the Religious Liberty Arguments
Let’s begin with the point of view that this is simply about religious liberty. When Obergefell v. Hodges was decided in favor of legalizing same-sex marriage, many, including dissenters on the Supreme Court, knew this case would spawn lawsuits across the nation regarding religious objections.
This has certainly been realized. Some states, such as Utah and North Carolina, have taken steps to institute religious protections for both private and public employees. Utah’s compromise is considered to be one of the most comprehensive and a template for other states to follow. These protections are rooted in the Civil Rights Act (Title VII), which requires employers to accommodate employees with religious beliefs that keep them from performing their duties, as long as it doesn’t cause undue hardship on the employer.
Robin Fretwell Wilson, director of the College of Law’s Family Law and Policy Program at University of Illinois and author of “Insubstantial Burdens—the Case for Government Employee Exemption,” explains that accommodation for religious beliefs is part of our law for a reason. “We actually, as a community, have very plural ideas about religion in our country, and we’re not trying to lock religious people out of public service.”
‘Objecting that Religious People Exist’
When I asked her about a government employee’s oath to uphold the law, she said this doesn’t mean that each and every employee has to marry each and every gay couple and assist with their marriage.
“It is wrong to say we can never have religious objectors in our midst—just because they’re religious,” she said. “As long as you can staff the office in such a way so that all of its functions get fulfilled and nobody ever gets treated differently, then religious people need to be accommodated. If an elected town clerk, like Ms. Davis, objects to same-sex marriage, then they need to find someone who doesn’t object and assign them those duties, sharing the workload appropriately. That way everybody gets the same process and it’s invisible to the public. If anyone has an objection to that kind of workaround, what they’re really objecting to is that religious people even exist.”
The problem with Davis’s case is she didn’t try to find anyone who would issue licenses to gay couples. Instead, she shut down that service entirely, not issuing licenses to anyone, gay or straight. While this allowed her to avoid charges of discrimination, it created an undue hardship on her employer and the taxpayers who paid for this service and shouldn’t carry the burden of traveling 20 or 50 miles to another county to get their marriage licenses. While some may not think this is a big deal, financial resources and transportation need to be taken into consideration, especially since there are poor areas in Rowan County.
The reason Davis said she wouldn’t allow any of her deputies to step in and issue marriage licenses was she didn’t want her name, as clerk of court, on the documents. “To issue a marriage license which conflicts with God’s definition of marriage, with my name affixed to the certificate, would violate my conscience,” she said. “It’s not a light issue for me. It’s a heaven or hell decision.”
This point sets Davis’s case apart from others in states like North Carolina, where magistrates were assigned to actually perform the ceremonies and where clerks wanted to stop issuing licenses only for themselves, leaving others to step up to the plate. In these cases, accommodations are easily made because the religious objector is excused while the office doesn’t shut down and couples seeking licenses aren’t burdened by being turned away.
Participation Versus Endorsement
Davis’s religious objection moved from a concern about actually participating in an act she disagreed with on religious grounds to not wanting to appear to endorse that act. Some might find this endorsement claim sympathetic while others might not, because she’s not actually doing anything, but either way she could have made—before she went to jail—one more step to at least show she was being considerate in her efforts to come to a reasonable solution.
If Davis didn’t want her name attached to the documents, she could have gone to the state legislature and asked them to change the law so county clerks’ names are no longer on marriage licenses. Who knows, the legislature might have found her endorsement claim sympathetic and changed the law. This would have allowed her to step aside from that duty while letting her deputies continue to issue licenses without her name on them.
This, of course, didn’t happen. The judge in the case tried to work with her, saying he would let her stop issuing licenses herself, but she had to let other deputies do it. Her office was a chokepoint in the process of getting married, and she was denying taxpayers the opportunity to get married. That had to stop.
Davis, however, said no. The judge offered her a reasonable accommodation for her religious beliefs, and she turned it down because her name would still be on those licenses—and that’s why she remained in jail for five days.
Setting Back Religious Liberty
It would have been interesting to see what would have happened if Davis had initially asked the judge for time to go to the state legislature to ask for the law to be changed and the county clerks’ names be removed from licenses in Kentucky. But she made no such effort, not until after she had gone to jail.
On Monday, her attorney asked the judge for an injunction to prompt Kentucky Gov. Steve Beshear to remove her name from the licenses. However, there was nothing in the judge’s order about an injunction. While the request is better late than never, she failed to take these steps prior to going to jail. Instead, she shut down the office, something she still might do. This, as Wilson repeatedly said, has made her a very unsympathetic character, and has set back the cause of religious liberty.
“An agent of the state whose office is charged with providing access to marriage, that office has to provide access to marriage,” Wilson said. “It isn’t her place to block anyone who wants to get a marriage license. The reason for that is the special place that marriage has in our society, which is that the state has a monopoly power on marriage. When Davis blocks these people out, she is in effect denying them a right that the Supreme Court just gave them. She doesn’t have to like that right, but she cannot block them from access to that right. You just can’t shut down the apparatus of the state. Period. That doesn’t mean to say that she doesn’t have the right to have her religious beliefs accommodated, but that’s not an absolute right. We need to work together in the civil society to come to an agreement where everyone’s interests are respected.”
Like the adage says, the devil is in the details. Davis could have been accommodated, but she didn’t initially take the proper steps to make sure her religious liberties were protected. She came across as intransigent and unreasonable, even hostile. This has made people deeply suspicious of anyone seeking religious protections and has created a rift even among conservatives.
Is Kim Davis a Hero?
Does this mean Davis isn’t an American hero? A religious freedom fighter? The next Rosa Parks? Yes, and no. As often happens in significant political moments, the individual becomes something bigger than he or she actually is. Davis acted not only out of an impulse to protect her own religious liberties, but to make a statement, to oppose an unjust law, to make a stand.
Her unwillingness to find the best ways to accommodate her religious beliefs while still honoring the rights of taxpayers who wanted to get married was rooted in a bigger cause. Even if this was not her primary impulse, it has certainly become the focus of many who are rallying around her.
It might also explain why some politicians (particularly those running for president) have been against her, then for her. If you focus just on the religious liberties aspect of the case, you might not think much of her plight, considering her choices.
But if you put her into the larger frame of civil disobedience and opposition to an unjust law that will have devastating effects on the institution of civil marriage, the autonomy of the family and with it protections of children from state intrusion, the freedom of the individual, and religious liberty, then you are more likely to come to Davis’s defense, at least as a general principle.
So, while many look at Davis’s case and see only a tenuous claim that deserves no religious protections—even as they agree there should be religious protections in every state and accommodations made for religious objectors to a legitimate law—others are more concerned about Obergefell on principle and its impact on the rule of law and the preservation of civil marriage. Their support of Davis is rooted in their resistance to an unjust law imposed by an activist court, not just religious liberty concerns and certainly not homophobic or anti-LGBT sentiments—a specious charge the Left levels to shut down dissent.
Consider American History
Those who see this case in this broader light have American history standing behind them. I’ll cite two great leaders regarding this point. One spoke out against an unconstitutional Supreme Court ruling and the need to overturn it, particularly in the Dred Scott case (which I compare to Obergefell only on the point of judicial usurpation). The other leader defied the laws of man because he held to a higher law—the moral law of God.
In 1857, the Supreme Court handed down its decision in Dred Scott case, which was one of the most controversial decisions in American history. It refused to recognize Scott as a citizen because he was black. The decision came just two days after President James Buchanan took office, and set the stage for the Civil War.
The ruling was unjust, in the same way that the Obergefell decision is unjust, unmoored from the Constitution and deserving no deference. No one expresses why this is better than the dissenting justices themselves, as Bradley Watson of National Review has explained. Justice Antonin Scalia wrote that “the Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”
The majority opinion, he said, is “couched in a style that is as pretentious as its content is egotistic,” and it’s a “naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government.” Referring to Federalist No. 78, he argued that the Court has “neither Force nor Will, but merely judgment.” In other words, citizens of the United States are bound not by the Court, but by the Constitution.
Justice Samuel Alito wrote that “the Constitution says nothing about a right to same-sex marriage.” Our rights are deeply rooted in our nation’s history and tradition, and “it is beyond dispute that the right to same-sex marriage is not among those rights. . . . Nor is the right to same-sex marriage deeply rooted in the traditions of other nations. No country allowed same-sex couples to marry until the Netherlands did so in 2000.” This new “right” was a fantasy Justice Anthony Kennedy brought into reality through judicial activism, but it has no foundation in our laws.
Depriving the People of Their Voice
The dissenting justices emphasized that the Supreme Court wrongly declared that the state recognizes marriage for the “happiness of persons who choose to marry.” Civil marriage, however, exists because of children, who are the result of only one kind of union—that between a man and a woman. This is something same-sex unions simply cannot produce, and it is why the government—the public—should have no interest in their relationship.
Justice Clarence Thomas said the majority decision in Obergefell stands at odds with our Constitution, which says that issues such as same-sex marriage should be left to the states, not to the courts. The Obergefell ruling turns this on its head and exalts judges at the expense of the people from whom they derive their authority. By imposing its own pet agenda on the American people, the majority robbed the people of having a voice in the laws that are made.
Be that as it may, some will say, the law is the law. The Supreme Court has ruled, and we must all remain silent and comply, tweaking our state laws to protect religious liberties where we can, but beyond that, our hands are tied.
If Abraham Lincoln were here today, he would beg to differ and say that a free people must not only speak out against unjust court rulings, they must work to overturn them. After the Dred Scott decision, Lincoln, who was practicing law in Illinois at the time, gave a speech in response to Judge Stephen Douglas, who lauded the Dred Scott ruling.
In that speech, Lincoln said it is perfectly acceptable for citizens to speak out against a Supreme Court ruling, and speak out he did: “We think the Dred Scott decision is erroneous. We know the court that made it has often over-ruled its own decisions, and we shall do what we can to have it to over-rule this.”
Unconstitutional Rulings Deserve No Deference
Even though Lincoln offered no particular resistance to the ruling because it was binding to the parties in the case, he made it clear the ruling could not stand as precedent because it was not rooted in the Constitution.
“If this important decision had been made by the unanimous concurrence of the judges, and without any apparent partisan bias, and in accordance with legal public expectation, and with the steady practice of the departments throughout our history, and had been in no part, based on assumed historical facts which are not really true; or, if wanting in some of these, it had been before the court more than once, and had there been affirmed and re-affirmed through a course of years, it then might be, perhaps would be, factious, nay even, revolutionary, to not acquiesce in it as a precedent.”
It had none of these claims, just as Obergefell doesn’t, which is why it is not worthy of deference. Lincoln continued, “But when, as it is true we find it wanting in all these claims to the public confidence, it is not resistance, it is not factious, it is not even disrespectful, to treat it as not having yet quite established a settled doctrine for the country.”
Lincoln was answering Douglas, who sounds like many in the Republican ranks today who say “the law is the law” and resistance to it is futile. Douglas said, “The courts are the tribunals prescribed by the Constitution and created by the authority of the people to determine, expound and enforce the law. Hence, whoever resists the final decision of the highest judicial tribunal, aims a deadly blow to our whole Republican system of government—a blow, which if successful would place all our rights and liberties at the mercy of passion, anarchy, and violence.”
Lincoln called Douglas out on this, citing another ruling involving the national bank that Douglas didn’t have any problem resisting as he supported President Andrew Jackson’s disregard for the decision. “Mere precedent,” Douglas wrote, “is a dangerous source of authority, and should not be regarded as deciding questions of constitutional power, except where the acquiescence of the people and the States can be considered as well settled. . . . Each public officer, who takes an oath to support the Constitution, swears that he will support it as he understands it, and not as it is understood by others” (emphasis mine).
Civil Disobedience Is Definitely In Play
Lincoln used Douglas’s own words against him, applying them to the Dred Scott decision. We can do the same with the Obergefell ruling. Obergefell is no more settled as a law reflective of our Constitution as Dred Scott was, a point made by John Eastman, a professor at Dale E. Fowler School of Law, who said, “The Supreme Court’s decision in Obergefell mandating same-sex marriage throughout the nation is not only wrong, but illegitimate.”
So what do we do with illegitimate and unjust laws? We do as we have been doing: protect citizens, both public and private, from its damaging effects. We have seen this, in particular, in cases of religious liberty.
But the Supreme Court can unravel even these efforts, so more must be done. The law needs to be overturned. It took an amendment to reverse Dred Scott. It might not take that much to overthrow Obergefell, but the precedent is certainly set for it to be done, especially in light of its threat to civil society regarding, not only religious liberty, but the autonomy of the family through the preservation of state-recognized marriage, something that cannot be maintained as long as marriage has been legally redefined from being a public interest to a private one.
In the meantime, civil disobedience is certainly in play, as we’ve learned from Martin Luther King Jr., who said an “unjust law is no law at all.” How do we determine if a law is just? “A just law,” King wrote, as he sat in a Birmingham jail after breaking the law, “is a man-made code that squares with the moral law, or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in terms of St. Thomas Aquinas, an unjust law is a human law that is not rooted in eternal and natural law.”
For those who oppose Obergefell because they stand by a higher law, by God’s law that marriage is between a man and woman, their claim is no different than King’s, and it is doubly right. Not only has Obergefell trampled on the Constitution, it has trampled on God’s law.
While arguments can be made about the facts of the case in a single clerk’s office in Kentucky (and those who support her would do well to recognize those facts), the bigger picture can’t be ignored. Within that larger frame, liberty will stand or fall. To ignore it—or worse, to scoff at it—is to defy history and God himself.