Some Quick Thoughts on the Kim Davis Case

In case you haven’t heard, Rowan County Kentucky Clerk Kim Davis refuses to issue marriage licenses to same-sex couples because it violates her Christian beliefs.

I appreciate Davis’s religious-inspired convictions about marriage.  As long as religious liberty is part of the American ideal, she should be able to promote and practice these views without government persecution.  I understand her moral dilemma and realize that the Obergfell decision on same-sex marriage has caused much anxiety and confusion for the defenders of traditional marriage.  Davis is a woman of faith who is trying to find the best way to honor her deeply-held religious convictions.

But I don’t think Davis has much legal ground to stand on here.  I have no doubt that the Supreme Court will eventually need to hear a case that pits same-sex marriage against religious liberty, but I don’t think this will be that case.  Davis works for the state and thus must enforce the laws of the state.  She does not work for a church or a religious organization. 

As a historian, the Davis case leads me back to a question I have been thinking about for a long time: Is America a Christian Nation?  Even if one argues that the United States was founded as a Christian nation, it is very hard to make the case that it still is a Christian nation today.  The United States does not privilege Christianity and thus (in the wake of Obergfell) does not privilege traditional Christian views on marriage.  In this sense, the United States is a secular nation.  Many of my fellow evangelicals will cringe when I use that term.  By secular I do not mean that religion cannot contribute to the public good or should in some way be eradicated from American life.  I am simply saying that religion is not the basis for the laws of the United States.  

Mark Silk has some interesting thoughts on the Davis case at his blog, “Spiritual Politics.”  Here is a taste:

No doubt, Christians have long been faced with a dilemma regarding obedience to civil law. On the one hand, there is Jesus’ oblique response to “render to Caesar the things that are Caesar’s,” and Paul’s more specific:
“Let everyone be subject to the governing authorities, for there is no authority except that which God has established. The authorities that exist have been established by God. Consequently, whoever rebels against the authority is rebelling against what God has instituted, and those who do so will bring judgment on themselves.”
On the other hand, the Early Church valorized its martyrs for defying Roman authority and Protestant theologians found ways to work around the Pauline prescription. Kim Davis is at once a governing authority and a person rebelling against governing authority.
For government employees in America — be they county clerks, public school teachers, or members of the military — religious liberty is conditioned by functioning in a governmental capacity. The longstanding American answer to any conscientious objection they may have was stated straightforwardly by Democratic presidential candidate John F. Kennedy, in his famous speech to the Houston Ministerial Association 55 years ago this month:
“But if the time should ever come — and I do not concede any conflict to be remotely possible — when my office would require me to either violate my conscience or violate the national interest, then I would resign the office; and I hope any conscientious public servant would do likewise.”
More recently, Justice Antonin Scalia took a similar position regarding a judge unable to uphold a law he or she conscientiously opposes.
“[I]n my view the choice for the judge who believes the death penalty to be immoral is resignation, rather than simply ignoring duly enacted, constitutional laws and sabotaging death penalty cases. He has, after all, taken an oath to apply the laws and has been given no power to supplant them with rules of his own.”

ADDENDUM:  Since I wrote this post earlier this morning, Davis has been found in contempt of the Supreme Court and arrested.  It seems as if she had one of two option.  She could either resign as county clerk or go to jail in an act of civil disobedience.  She has chosen the latter.

ANOTHER ADDENDUM:  Charles Haynes of the Religious Freedom Institute of Newseum Institute offers a  possible compromise.

10 thoughts on “Some Quick Thoughts on the Kim Davis Case

  1. The establishment clause has nothing to do with an individual personally forcing their religion upon another. It has to do with the federal government establishing a state religious dogma upon its citizens. The judiciary is failing to acknowledge her right to her religious views, thus violating the free exercise clause (which applies to all citizens whether government employees or not). At the very least, instead of throwing her in jail, the KY legislature should consider a way to accommodate her views instead of asking her to violate her conscience. To say she is a government employee and that she must set aside her religious convictions is a violation of her constitutional rights.

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  2. She has not acted lawfully. The Obergefell decision is constitutional. I question her moral right. The justices acted in accordance with the law while Kim Davis decided to break the law by failing to do her duty.

    If you think she is not breaking the law, then there will be no charges for me ignoring the speed limit because it unfairly restricts me from getting from point A to B quickly because other people can't drive as fast. It would be the complete breakdown of law. The Constitution is the document she swore to uphold, not the Bible. If she cannot perform her office because it conflicts with her faith, then she should resign. Instead she sits in jail while the marriage licenses are issued.

    If she has the legal right to refuse to do her duty, then any service member has the right to refuse any order from anyone that they don't want to follow. For that matter, I do believe the SCOTUS case Engel v. Vitale (1962) applies here. She is trying to force her religion on people through her actions. That is a violation of the Establishment Clause.

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  3. This is not a case of religious liberty. It is a case of a lower magistrate who objects to the unconstitutionality of the Obergefell decision as did the dissenting judges. She has every moral right and an obligation to do so under the Constitution. She has acted lawfully while various judiciaries have acted with over-reach (i.e. unlawfully), something our Constitution has sought to prevent.

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  4. As a Christian, she clearly seems to see this as an act of civil disobedience as she is willing to go to jail (or be fined) for her convictions. I think that her protest is a perfectly legitimate thing to do. Some say that it is unfair that she has to make a choice between her religious convictions and her job, but as I understand Christian theology there is nothing that says that one who stands up for what they believe to be biblically-based convictions will not suffer persecution (or the loss of a job). Again, this is a secular country with religious liberty. She is not being put in jail for believing in traditional marriage. She is being put in jail for violating the law. Perhaps the law is unjust. Perhaps it is not. If it is unjust, as she and many other believe, then she is suffering for Christ and, according to the Bible, she should “count it all joy.”

    Ace.

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  5. Well, the judge in the case has decided to send her to jail. I think that was a mistake, but then again based on the funding from donors, fines were not going to resolve the issue. She made a choice and is going to jail for it. She should resign her job. If she cannot perform her duties because to do so would violate her religious beliefs, then she should not hold the office.

    You make a good point about divorce issues. That has constantly been overlooked. Does allowing for divorce violate her beliefs? How about the death penalty? What about military service? I could easily point to 2003 and say that any service member could have refused to go to war with Iraq as it would have been against their religious beliefs.

    That GOP presidential candidates are flocking to support her shows just how little respect they have for the US Constitution or the separation of church and state. They are really digging a hole for themselves with more and more people. Their blind devotion to the religious right is destroying their ability to be seen as capable leaders.

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  6. This is an interesting case. I would agree with Mat Staver on her divorces. I don't think we can hold these against her. Her conversation experience of four years ago seems to be real. If that is the case, I think she would be the first to say that her previous behavior was wrong. I am willing to give her the benefit of the doubt on that front.

    Here's an interesting thought. Don't County Clerk's issue divorce records as well? Does she, as the county clerk, need to sign these? If so, has this in any way pricked her conscience?

    There are two ways of looking at this: legally and religiously. Legally she does not have any legs to stand on.

    As a Christian, she clearly seems to see this as an act of civil disobedience as she is willing to go to jail (or be fined) for her convictions. I think that her protest is a perfectly legitimate thing to do. Some say that it is unfair that she has to make a choice between her religious convictions and her job, but as I understand Christian theology there is nothing that says that one who stands up for what they believe to be biblically-based convictions will not suffer persecution (or the loss of a job). Again, this is a secular country with religious liberty. She is not being put in jail for believing in traditional marriage. She is being put in jail for violating the law. Perhaps the law is unjust. Perhaps it is not. If it is unjust, as she and many other believe, then she is suffering for Christ and, according to the Bible, she should “count it all joy.” Of course not everyone–including many Christians–would believe that such a stand is necessary on this issue.

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  7. It is pretty clear that she has no legal leg to stand on in this matter. The concept of separation of church and state fits this issue perfectly. She wants to be a martyr, but I don't think she is going to like how it works. Instead of jail time, she is going to be fined. Now, while the people supporting her have money right now, that will dry up eventually. The legal group advising her wants this confrontation, but the problem is they are giving her some bad advice. Not only that, they are giving her bad legal advice because they want to use her to their own ends, not hers.

    The other part of this is her own hypocrisy. A woman who has been divorced three times and married four times is really not the person to use as a paragon of virtue. I heard, so can't say this is fact, that she was married to Husband 1 while carrying twins conceived with Husband 3, but divorced Husband 1 during that pregnancy to marry Husband 2.

    This whole thing seems to me as a big, overblown facade for her to get her 15 minutes of fame and publicity for the group backing her. The fact that it will accomplish absolutely nothing is being overlooked.

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