On September 3, Judge David L. Bunning jailed Kim Davis, Kentucky’s Rowan County Clerk who refused to issue same-sex “marriage” licenses. Davis, an elected official who can only be removed from office by the State legislature, claims issuing marriage licenses to same-sex couples per the recent Supreme Court ruling would violate her religious liberty.
The case may represent the first time a Christian has been jailed in America over the redefintion of marriage, but because Davis is a government employee, it’s a complicated situation with many angles. Christians are divided on Davis’ actions, and the response by authorities. At issue are questions about the nature of religious liberty, the duty of Christians in government, and what godly civil disobedience looks like. We’ve asked for opinions from top Christian thinkers and gathered them here.
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Hunter Baker
Union University
I have made the claim that Kim Davis (a county clerk) is differently situated from, say, Christian bakers, florists, photographers, etc. My reasoning is that private citizens are not obligated to recognize constitutional rights in their personal affairs.
For example, I do not have to do business with someone who uses their freedom of speech to say things I find abhorrent. Likewise, I would argue that Christian business owners should not have to perform services that they believe violate their religious beliefs. It should be enough that they do not interfere with the rights of those with whom they disagree.
Remember that it was not the Constitution, but the Civil Rights Act of 1964 that regulated private business. The Civil Rights Act is so intrusive, it is justifiable primarily as an answer to an oppressive system of southern segregation similar to Apartheid. As we have no such system in place to harass or otherwise oppress gay citizens, the government goes too far in forcing religious objectors who are private persons (and private business owners) to conform.
Kim Davis’s office is obligated to perform the state function of issuing wedding certificates. She disagrees that marriage can exist between two people of the same sex. I agree with her. However, the state of Kentucky has little choice other than to respect the ruling of the Supreme Court. The ideal circumstance would be for the state to accommodate her, but I believe that her case is less strong than it would be if she were a private citizen. She should probably resign while making her grounds for opposing the court clear.
Hunter Baker, J.D., Ph.D. is an associate professor of political science at Union University and the author of three books on religion and politics.
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Francis J. Beckwith
Baylor University
Thoughts from a Kentucky Jail:
“I am the king’s true subject, and I pray for him and all the realm. I do none harm. I say none harm. I think none harm. And if this be not enough to keep a man alive, then in good faith, I long not to live. Nevertheless, it is not for the Supremacy that you have sought my blood, but because I would not bend to the marriage!” – St. Thomas More (from A Man For All Seasons)
“One has not only a legal, but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws.” – Martin Luther King, Jr., A Letter From a Birmingham Jail
“To issue a marriage license which conflicts with God’s definition of marriage, with my name affixed to the certificate, would violate my conscience.” – Kim Davis
Francis J. Beckwith, Professor of Philosophy & Church-State Studies, Baylor University
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Michael L. Brown
FIRE School of Ministry
There is a healthy debate taking place among both believers and non-believers concerning the rightness of Kim Davis’s actions. Should she simply have resigned if, in good conscience, she could not issue those certificates? Does she have any legal, moral, or constitutional ground on which to stand?
That is a legitimate debate, and it is one that is sure to continue.
But what cannot be debated is that the national outrage against Kim Davis has nothing to do with her refusing to obey the law and everything to do with her Christian beliefs. Had she found herself on the opposite end of the conflict and had she stood for “gay rights,” refusing to obey a law that she felt discriminated against them, she would be praised from coast to coast.
Yesterday I tweeted, “It’s interesting that gay activists who praised SF mayor Gavin Newsom for illegally issuing marriage licenses now vilify Kim Davis.”
Hector Alvarez (@eltoritolociito) responded, “@DrMichaelLBrown how is it interesting? He was for marriage equality, she was an anti gay bigot who wasnt doing her job.”
Doesn’t that say it all?
Michael L. Brown, Ph.D., hosts the national radio program the Line of Fire and is president of FIRE School of Ministry. His most recent book is Outlasting the Gay Revolution: “Where Homosexual Activism Is Going and How to Turn the Tide.”
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Joe Carter
Acton Institute
The Kim Davis incident shows why the rule of law needs to be combined with the Christian concept of subsidiarity, the tenet that nothing should be done by a larger and more complex organization which can be done as well by a smaller and simpler organization. The state of Kentucky had two ways to deal with an elected official like Davis: impeachment or accommodation of her religious beliefs. Either option would have resolved the issue and established a precedent. Instead, a federal court rushed to intervene and brought in men with guns to throw the clerk in jail—and resolved nothing. Americans need to decide how much longer we’re going to allow judges to circumvent the will of the people.
Joe Carter is a senior editor of the Acton Institute.
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Maggie Gallagher
American Principles in Action
A federal judge just ordered jail time for Kim Davis, the Kentucky clerk who has refused to sign same-sex marriage licenses.
I acknowledge court orders cannot just be flouted, but you have to admire someone willing to go to jail for her beliefs.
There is no good reason we reached this sad pass. Many state legislatures have prevented this kind of escalation by putting the duty to issue licenses on the office, not the individual clerk. That is a win-win that hurts nobody.
If Kim Davis languishes in jail, it’s because Democrats want her there as a symbol of their power to redefine Christianity as hatred and bigotry. And because the Republicans do not have the guts to contest it.
Maggie Gallagher is a senior fellow at American Principles in Action.
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Shane Morris
Colson Center for Christian Worldview
In light of Kim Davis’ jailing, some Christians are offering the scenario of a Muslim government official who refuses to sell liquor licenses, because it violates his religion. “How is that different from what Kim Davis did?” they ask. It’s different because selling liquor isn’t wrong. Certifying same-sex sexual partnerships as “marriages” is.
There is a Truth, and there is a Law higher than the Supreme Court. How many Americans today would fault a 1920s county clerk who refused to license sterilization clinics after the Supreme Court decision Buck v. Bell? Eugenics was “the law of the land,” but would we not consider any official a hero for using what power she had to obstruct that unjust and immoral law? Where would all of the Christians be who are today saying, “It’s the law. She should just do her job or quit!”? I suspect they would feel differently. Because, they might say, homosexual marriage isn’t like eugenics. It doesn’t hurt anyone.
Really?
The Muslim liquor license analogy fails because we do and should discriminate when it comes to right and wrong, and natural law, which supersede the power of government, contrary to what Judge David Bunning says. This is the very concept that inspired the American Revolution, and a Civil Rights activist generations later from a Birmingham jail cell: There is a Law above the law. And any manmade law in contradiction to it is “no law at all.”
A Christian woman is in jail for upholding the definition of marriage set in place at creation against one just invented by Anthony Kennedy. I don’t feel comfortable telling her she’s wrong, or that she should just do her job. She’s standing on the side of reality, of natural law, and God, against a depraved fantasy. Where are we standing?
Shane Morris is Assistant Editor for BreakPoint.
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Karen Swallow Prior
Liberty University
Civil disobedience has an honorable and important place in America, going back to its very foundation. Whether or not Kim Davis should or should not have complied with the law is not the most important question facing Christians in this controversy. Nor is gay marriage the central question to this particular debate. The crucial matter the church is facing, as demonstrated by this conflict between one individual believer and the state, concerns the kind of relationship we as a church can demand–or expect–with the government in a post-Christian era. It will not be an easy question to answer, but it’s the one before us today.
Karen Swallow Prior, PhD, is Professor of English and Modern Languages at Liberty University
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Warren Cole Smith
WORLD Magazine
Dr. King Speaks on Behalf of Kim Davis
I would not argue that the legal case of Kim Davis is strong. She is, or appears to be, breaking the law. But I would also argue that just because she is breaking the law doesn’t mean she is wrong, or that she is undermining the rule of law. She is exercising civil disobedience in a profound and honorable way.
If you doubt my assertion, I commend to you Martin Luther King. He is well-known for his “Letter from a Birmingham Jail,” but he is less well-known for this letter from an Albany, Georgia, jail. Police arrested King and others during a peaceful protest there. He had the choice of paying a $178 fine or spending 45 days in jail. He could well afford the fine, but he chose the jail time. He wrote this in response to his critics:
“Some of our critics complain that our non-violent method fosters disrespect for the law and encourages ‘lawlessness.’ Nothing could be further from the truth. Civil disobedience concludes that the non-violent resistor in the face of unjust and/or immoral law cannot in all good conscience obey that law. His decision to break that law and willingly pay the penalty evidences the highest respect for the law. … Thus it is, when the non-violent resistor refuses to cooperate with a law that is out of harmony with the laws of God and the laws of morality, he must break the law—but in so doing, he practices civil disobedience and accepts the penalty, thereby practicing moral obedience and transforms the jail into a haven of liberty and freedom.”
To Dr. King, I say, “Amen.” To Kim Davis, I say, “May God bless and keep you safe during this time of trial. And may God use you to awaken the moral imagination of our nation.”
Warren Cole Smith, Vice President, WORLD Magazine
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R. Reno
First Things
I understand the importance of the rule of law. Laws can be imperfect, even unjust. But we can’t have a system where every individual gets to exercise a veto, especially not public officials. For this reason, there’s a legitimate dimension to Judge David Bunning’s decision to put Kim Davis in prison for refusing to sign marriage licenses.
But there’s also the illegitimate aspect. The rule of law is often set aside by public officials, so why single out Davis? Last summer, the Brooklyn District Attorney Kenneth Thompson announced he would not longer prosecute those arrested for possession of small amounts of marijuana. While it’s true prosecutors can decide whether or not to bring charges in any particular case, this public announcement of a general policy amounts to a refusal to enforce the law.
The parallels to Kim Davis are pretty close. It’s Kenneth Thompson’s job to prosecute, not to formulate drug laws for New York State, just as it’s Davis’ job to sign marriage licenses, not to determine the laws of marriage. Both demure from doing their jobs, saying, “No, I won’t do that, even though the law says otherwise.”
But there the parallel ends. Thompson’s decision was cheered by progressives. Nobody called for Thompson to resign. No judge stepped in to order him to do his job. Davis? She’s in prison.
The ways in which progressives get a free pass isn’t hard to see. Imagine a New York county clerk a few years from now after the courts have found a right to polygamous marriage in the Constitution. She refuses to sign marriage licenses for men marrying second and third wives, citing her feminist commitments. She’d be championed by the New York Times. Efforts to compel her would fail, because judges would come up with legal reasons why she has a right to dissent.
Yes, the rule of law is important. But Kim Davis behind bars shows that it only applies to some people in America.
R. Reno is the editor of First Things.
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Roberto Rivera
Colson Center for Christian Worldview
As regards Mrs. Davis and the position she is taking, there are two points I want to emphasize: One, having misgivings about the position Davis has staked out and even criticizing this position is not the same thing as agreeing, much less siding, with her pro-gay-marriage critics in the media and on the internet. See Mollie Hemingway.
Two, whatever position you take, the principles your position is based on should be universally applicable. You should be willing to apply those principles even when you disagree with the position being taken. Otherwise, it’s just special pleading. It’s easy to invoke religious freedom when you share the convictions of the person taking the stand. But what about when it’s a Muslim or a Sikh making a claim? Are you willing to apply RFRA standards in these sorts of cases?
Roberto Rivera is a Senior Fellow at the Colson Center for Christian Worldview.
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Carl R. Trueman
Westminster Theological Seminary
The Davis case has numerous points of interest. Her past divorces are a rhetorical gift to the proponents of gay marriage. Though they happened before she became a Christian, Christians need to understand that the church’s routine acceptance of divorce within her ranks over the decades has left her weak in her public testimony on marriage. Further, the case should stimulate discussion of what a reasonable accommodation (as required under the Civil Rights Act of 1964) might look like in such a situation. “Obey or go to prison” is not the default legal position in this matter. Government and employers are required to accommodate religious objectors unless such accommodation creates undue hardship for the employer. The fact that that point does not appear to have been addressed here is perhaps the most worrying aspect of this. It is, after all, the law of the land as much as gay marriage.
Carl R Trueman, Paul Woolley Professor of Church History, Westminster Theological Seminary.
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Andrew Walker
Ethics and Religious Liberty Commission
The Supreme Court is where ultimate blame rests involving Kim Davis. Court rulings that are truly rooted in justice should seamlessly integrate into a state’s laws. Rulings should not circumvent the democratic process, pre-empt state action, and leave civil society in a state of fractious tumult. Unfortunately, that’s what Obergefell did, and now we’re seeing its disastrous effects in state jurisdictions such as Kentucky. That, and needless escalation in terms of incarceration, coupled with government inaction has brought us to the situation we’re in.
We must recognize the crucial difference between the religious liberty claims of private citizens and government officials. While government employees don’t lose their constitutional protection simply because they work for the government, an individual whose office requires them to uphold or execute the law is a separate matter than the private citizen whose conscience is infringed upon as a result of the law. It means the balancing test is different when it comes to government officials because of their roles as agents of the state. Government officials have a responsibility to carry out the law. When an official can no longer execute the laws in question due to an assault on conscience, and after all accommodating measures have been exhausted, he or she could work for change as a private citizen, engaging the democratic process in hopes of changing the questionable law.
Andrew T. Walker is Director of Policy Studies at The Ethics and Religious Liberty Commission and a doctoral student in Christian Ethics at The Southern Baptist Theological Seminary.
Portions excerpted from “Need We Jail Each Other Over Marriage Licenses?”
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A Collection of Responses from around the Web:
Ryan Anderson, Heritage Foundation, interviewed on CBN
and on CNN
The Supreme Court has held on numerous occasions that you don’t give up your religious freedom rights just because of the job you hold—even if it’s a government job. So we need to find a way to balance both the rights of the citizens of Rowan County to receive a license and the rights of the employees and civil servants in Rowan County
Joe Carter, Acton Institute Power Blog, “Explainer: The Kentucky Marriage License Controversy”
Why doesn’t the county just fire Davis instead of putting her in jail? Because Davis is an elected official, she can only be removed from office for impeachment. That would require the Kentucky House of Representatives to charge her with an impeachable offense and the Senate would then try her. Impeachment is unlikely since few citizens in Kentucky support same-sex marriage.
Rod Dreher, The American Conservative, “What Hill Do We Die on, Then?”
[T]he cause of protecting marriage in the law is lost; we religious conservatives have got to stop being so reactive, and start being proactive, preparing to play the long game. At this point, it’s not about winning the marriage fight. That’s over, and we were defeated decisively. Now, it’s all about protecting the liberty of our institutions in a post-Christian society. Cases like Kim Davis’s are all about fighting the last, lost war; engaging on that hopeless battlefield can only compromise our ability to fight effectively on the ones just ahead.
David French, National Review Online, “Kim Davis’s Stand Is Right and Necessary”
The legitimacy of Davis’s protest is inseparable from the illegitimacy of the court opinion that made it necessary. And it is this very illegitimacy that means she should neither resign nor comply. Instead, she has chosen the proper response: resist.
Albert Mohler, Al Mohler.com, “’In this world you will have trouble’—Welcome to Rowan County”
During the Reformation, both Martin Luther and John Calvin affirmed what was later defined as the “doctrine of lesser magistrates” which held that the tyrannical dictates of a higher authority could be defied by a lesser government authority who acted on conscience in defense of what is right. Lutheranism even added this doctrine to its confessional basis in the Magdeburg Confession (1550).
Eric Teetsel, Manhattan Declaration, “Is Kim Davis Doing the Right Thing?”
Jesus instructed in Matthew 22, “Therefore render to Caesar the things that are Caesar’s, and to God the things that are God’s.” For a long time, Christians in America enjoyed the blessings of life in a Democratic Republic in which cultural norms reflected the shared biblical values of the majority. Rendering unto Caesar is easier when Caesar shares your values. That has been changing for decades, and Obergefell marks a tipping point.
— by Breakpoint
Breakpoint, a radio commentary (www.breakpoint.org). Copyright© 2015 Prison Fellowship Ministries. Reprinted with permission. BreakPoint is a ministry of Prison Fellowship Ministries.