Kentucky clerk Kim Davis, religious freedom, and state agency

The embattled Kentucky county-clerk who refuses to grant marriage licenses to same-sex couples has been sentenced to jail for contempt of court. The NYT reports on Kim Davis:

The clerk, Kim Davis of Rowan County, Ky., was ordered detained for contempt of court and later rejected a proposal to allow her deputies to process same-sex marriage licenses that could have prompted her release.

 

Instead, on a day when one of Ms. Davis’s lawyers said she would not retreat from or modify her stand despite a Supreme Court ruling legalizing same-sex marriage, Judge David L. Bunning of United States District Court secured commitments from five of Ms. Davis’s deputies to begin providing the licenses. At least two couples planned to seek marriage licenses Friday.

U.S. District Judge David Bunning, who could have imposed a fine, opted to jail Davis instead.

Bunning reasoned Thursday that Davis’ supporters are likely to step in with fundraising efforts, leaving fines ineffective and allowing her to continue to defying the preliminary injunction he issued against her in August.

 

Instead, he ordered U.S. Marshals to take her into custody until she agrees to issue licenses, and he indicated that he has no plans for releasing her on Friday because of concerns that she would return to the office and reestablish the policy.

On August 12, Bunning had

ordered Davis, in her capacity as county clerk, to issue marriage licenses to all couples who meet the statutory criteria for marriage in Kentucky—a definition that, since the Court’s landmark decision in Obergefell v. Hodges, includes same-sex couples.

Views on Kim Davis’s and the court’s decision are divided roughly along liberal and conservative lines, though Conservatives Rod Dreher and Megan McArdle take the “do your job or resign” tack. To the Left Davis is a bigoted pariah who should be thrown under the jail. To many on the Right, and not a few evangelicals, she’s standing for religious freedom in a culture increasingly hostile to it.

Davis has become the “meme child” for those who believe Christianity’s primary outward face is hypocrite. Her pre-conversion story is rough, having been married several times, and, apparently had children from one father while in relationship with a different man. She claims to have come into a relationship with Jesus Christ since then, and now wants to live out those beliefs.

Some non-believers see the whole thing as a charade, just another bigot who wants to force her hate on other people. Those of us who have been saved resound with this story. We, too, once were blind, but now see. We, too, once were dead, but now are alive. We know that God changes lives.

Because, such were some of us.

A few thoughts, keeping in mind I am not a supporter of same-sex marriage:

Though Davis is guiltless before God for her previous life, she’s reaping a bad harvest from it. The hammering Kim Davis is taking because of her past is sad, but not unexpected. Those of us who have been in churches all of our lives know full well she would receive the exact same treatment in some churches, let alone the wider culture.

I fully believe in the power of God’s forgiveness, and know the East is a long way from the West. Nevertheless, the Apostle Paul was viewed askance for a while after his conversion. Salvation doesn’t always destroy a bad crop awaiting harvest in the field. I won’t pile on Davis for her former life, but don’t be surprised that others are.

For many, this is little more than another expression of their own unbelief. Jesus hasn’t changed their lives, why should they believe He could change anyone else’s?

This situation is not like the Christian bakers. Davis is an agent of the state of Kentucky and Rowan County. She represents “The People,” not only those who voted for her. She works for a government entity; she is not in the private sector. The argument for the bakers, “Gay couples can find someone else to bake a cake,” was valid. Not so for the county clerk. A resident cannot simply go to alternativekentuckymarriagelicenses.com, download a PDF, mark it with an X and be married.

State agency also concerns me where signing marriage licenses is concerned…but I’m not employed by the state. Todd Littleton gave us several provocative blog posts in his Uneasy Agent of the State series. I share his concerns. Signing a marriage license issued by the state makes me party to state action. When I pronounce, “By the authority vested in me by the state…” the agency is clear.

I do not argue the state has no interest in marriage; clearly it has and will continue to do so. And, as long as I use that authority when it pleases me, I may be coerced into using that power when it pleases Caesar. But, I’m not employed by the state. My solution is easy: refuse being an agent of the state. I do burials without signing a death certificate; I can lead celebrations of marriage without signing a marriage license.

State employees are not afforded that luxury. The medical examiner or coroner cannot refuse to sign a death certificate if the deceased passed while committing an offensive act.

Davis is not merely standing for her beliefs. If the news reports are accurate, she has also forbidden her deputies from issuing licenses for same-sex couples. (The SCOTUS blog disagrees saying Kentucky law requires her signature to be on every license.) Davis’s attorney claims licenses issued while she is jailed “are not worth the paper they’re written on.”

It makes one wonder if a different kind of ruling could have been sought. Lyle Denniston writing at SCOTUS blog above notes, “One of the deputies, Davis’s son, Nathan, would not yield to the judge’s demand, but the judge chose not to punish him because other clerks would be available to issue licenses.”

If Davis refused to allow deputies issuing authority, she turned the entire marriage license process at the clerk’s office into a de facto extension of her convictions. This is not a good thing, in my view. Dreher is strong here:

If religious liberty means that even officers of the state can defy the law without consequence, then it makes every individual a potential tyrant.

Pressing the issue further forces these questions: Does Davis refuse couples in which one is a believer and one is not, thereby licensing for marriage an unequal yoke? Does she vet all applicants who have been previously married as to whether their divorces had any biblical basis? If the applicants are very young, does she check to see if the parents of each applicant are in favor of the marriage? All of these questions arise from valid biblical concerns.

If Davis is only choosing to enforce her beliefs on same-sex marriage rather than other clear biblical marriage concerns, she has opened the door herself to charges of inconsistency. But if she is using biblical parameters to issue all marriage licenses as an agent of the state, that’s an entirely different problem. Hypocrisy, if the charge be true, relates not to her pre-conversion life versus her post-conversion life, but in unequal application of what the Bible says about marriage under the New Covenant.

Jailing Davis may protect both freedom of religion and freedom from it. Brandan Robertson, with whom I disagree on same-sex marriage, makes a valid point here:

Religious Liberty is a concept that is based on the First Amendment of the Constitution which states “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof …” It is the fundamental principle that ensures that all Americans will be able to practice their religious convictions freely and openly without fear of government regulation or prohibition. It is also the principle that bolsters the idea of the separation of Church and State. While religious institutions are guaranteed protections against any government regulation or involvement in their religious life, the government is also protected from religious institutions attempt to garner political power over the nation. What this means is that anyone who functions as an agent of the state must remain religiously neutral, providing equal service, treatment, and rights to all people of all religious, ethical, social, and cultural backgrounds.

If the state does not protect those who I think are wrong, why should it protect me? Americans are constitutionally protected for belief or lack thereof.

Imagine an atheist is the head of the county zoning office. This atheist not only refuses to issue my church a permit to build in an appropriate area, but refuses to issue any church a building permit. She cites any number of personal objections. Should she be allowed to refuse? Imagine in a heavily Muslim county the head of the driver’s license testing station decides he will not administer driver’s tests to women based on his religious beliefs. Should he be allowed to do it?

Who would be raising their voices if Mrs. Davis were refusing to issue gun permits based on pacifistic beliefs? I’m left to believe current adulation would pivot to “Off with her head!” with a speed approaching Warp.

Davis had two real options that I see. She chose to exercise one of them. Option 1 was to resign. “I am a Christian first, and an agent of state second. The state wants me to violate my religious beliefs and my conscience. I have taken this to the Supreme Court in an attempt to gain legal support; that effort failed. As such, I hereby tender my resignation as country clerk.” Painful, yes. But it was a possibility.

Option 2 was to be jailed (since the judge refused a fine).

While option 1 may be unpleasant for followers of Jesus, and option 2 is worse, this is the very thing we are warned against. The world does not like us. In the words of Jesus, “Don’t be amazed when the world hates you.” Still we stand at times with mouths agape at the slightest resistance. Same-sex marriage is, per Supreme Court ruling, the law of the land. We should not be amazed when we are not high-fived for opposing it.

We are reminded here are the two kingdoms. Followers of Jesus live in the kingdom of man and the Kingdom of God. We have dual-citizenship. Our allegiance is first and foremost to the invisible Kingdom which is also eternal. This allegiance unavoidably brings us into conflict with the first kingdom which is visible and temporal. We will sometimes pay for not giving fealty to Caesar. When we render unto God that which belongs to God, Caesar is at times less than happy about it.

What I consider worship and what the United States government considers worship may not align. While I would agree all Christians, including Kim Davis, live our lives as acts of worship, the government has not embraced such a policy. Davis wasn’t found in contempt for praying over her lunch in the break room. She wasn’t jailed for refusing to take down Bible verses from the walls of her office. It’s this point made by Moore and Walker:

Government employees are entitled to religious liberty, but religious liberty is never an absolute claim, especially when it comes to discharging duties that the office in question requires. 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.

Judge Bunning cited similar concerns:

Personal opinions, including my own, are not relevant to today. The idea of natural law superseding this court’s authority would be a dangerous precedent indeed.

I sympathize with Kim Davis. The day may come when many of us face difficult choices, if not about same-sex marriage, then about another religious liberty issue. But, we with religious liberty concerns need to be careful who we hold up as our martyrs. We are walking a narrow enough path as it is.

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Marty Duren

Just a guy writing some things.

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