Kim Davis’s
convictions, like so much of religious thought in the USA, is a mish-mash of
American civil religion, the Bible, the constitution and the invocation of
freedom. One of the quotations which looms large biblically in the claim of
religious freedom for Christians is found in Acts 5. Peter and John have been
arrested and imprisoned on the Temple mount for preaching in Jesus’ name. Miraculously
freed from prison, they continue to teach in Jesus’ name. When they are
rearrested they appear once again before the council:
26 Then the captain went with the temple
police and brought them, but without violence, for they were afraid of being
stoned by the people.
27 When they had brought them, they had them
stand before the council. The high priest questioned them,
28 saying, "We gave you strict orders not
to teach in this name, yet here you have filled Jerusalem with your teaching
and you are determined to bring this man's blood on us."
29 But Peter and the apostles answered, “We
must obey God rather than any human authority.” (Acts 5:26-29)
This has been,
since the origins of Christianity, a significant issue: what to do when the
demands of civil law conflict with what are understood as divine commands or
prerogatives?
The depth of Kim Davis’
convictions can only be ultimately judged by God and her, but her willingness to
flout the civil law in order to maintain her religious convictions has a long and
noble history in Christianity. All of us would recognize, for instance, that
laws entrenching slavery were wrong and those who fought against these laws
were on the side of the angels, even when those laws had the strength and
support of government and civil law.
The big difference
between Kim Davis and many predecessors in these battles, including the early
Christians and including Peter and John in Acts 5, is that they were not tasked
with upholding governmental laws. Kim Davis is an elected member of the
government and it is her responsibility to follow the law. It is clear that if
she does not wish to follow the law, and cannot with a clear conscience or with
a religious exemption she can maintain, she should resign her position.
It is not just the
earliest Christians, martyrs such as Felicity and Perpetua, Polycarp and
Ignatius, who were willing to stand up to laws which they could not follow, and
so die for their convictions, but even Christians today find themselves in
these positions, even if martyrdom is not usually the result in the USA. One of
the reasons you will not find an Old Order Mennonite or member of the Amish community
wrestling with their conscience as to whether to issue a license for a same-sex
marriage as a county clerk is that they long ago made the decision to opt out
of the governmental and electoral process to preserve their Christian
integrity, just as the earliest Christians did in the first three centuries. Believing
that there was to be a strict separation between state and church, they found the
simplest way to maintain that integral separation by choosing not to participate
in the political process or to seek elective office. While maintaining the
authority of the state, for instance to bear the sword (Romans 13:1-7),
Mennonites and the Amish see the focus of their community life to be the locus
of moral authority, punishment and reconciliation. As Paul writes in 1
Corinthians 5,
9 I wrote to you in my letter not to
associate with sexually immoral persons—
10 not at all meaning the immoral of this
world, or the greedy and robbers, or idolaters, since you would then need to go
out of the world.
11 But now I am writing to you not to associate
with anyone who bears the name of brother or sister who is sexually immoral or
greedy, or is an idolater, reviler, drunkard, or robber. Do not even eat with
such a one.
12 For what have I to do with judging those
outside? Is it not those who are inside that you are to judge?
13 God will judge those outside. “Drive out
the wicked person from among you.” (1 Corinthians 5:9-13)
Two key verses come
at the end with the focus on judging those “inside” the church, but not judging
those “outside” the church. The Church’s judgment and authority, therefore, is
an internal and not external matter.
Although it seems a
radical position today, it was the position of the early Church prior to
Constantine. Most of us, however, certainly most Catholics, fit more into an
Augustinian, or post-Constantinian, position in which we participate in both the city of God and the
city of man in more formal ways, such as voting and seeking elective office.
Then, of course, the laws of the world impact us in different ways and call
upon us to engage in them in different ways. If Kim Davis has found a law which
she cannot enact, and cannot do so even with a religious exemption, then she
must heed her conscience and remove herself from that role. She must serve God
and not human beings. But she cannot stand in the way of these laws either as
an elected official. Religious integrity calls on her to heed her own
conscience, but not dictate the conscience of others. They too have the right
of their consciences.
Many commentators
have taken this position, including the biblical scholar Candida
Moss, and I do believe it is the Christian position, because Kim Davis,
free of the burdens of her office, could then argue against the legislation if
she chooses or silently reject it. Her conscience is her own and she must honor
it.
Two others, however,
have claimed that there are ways around her resigning her position. Monsignor
Pope, writing
in the National Catholic Register, believes
that the law regarding same-sex marriage is not just an “unjust law,” but “despotic
and shameful abuse” and so worthy of civil disobedience by Kim Davis in her
position as county clerk (he cites CCC, 1902-1903 in reaching this conclusion). Elsewhere in his article he cites CCC, 2242, which I quote directly from his article:
“When citizens are under the oppression of a public
authority which oversteps its competence, they should still not refuse to give
or to do what is objectively demanded of them by the common good; but it is
legitimate for them to defend their own rights and those of their fellow
citizens against the abuse of this authority within the limits of the natural
law and the law of the gospel.
(2242)
There are times
as well when Civil Disobedience is required of us. The Catechism says in the
same place:
The citizen is obliged in conscience not to follow the
directives of civil authorities when they are contrary to the demands of the
moral order, to the fundamental rights of persons or the teachings of the
Gospel. Refusing obedience to civil authorities, when their demands are
contrary to those of an upright conscience, finds its justification in the
distinction between serving God and serving the political community.
"Render therefore to Caesar the things that are Caesar’s, and to God the
things that are God’s." "We must obey God rather than men": (2242)”
There are two issues with his position, however, which I think still demand that the result be that Kim Davis resign her position if a satisfactory religious exemption cannot be found. First, the CCC says that, The citizen is obliged in conscience not to follow the directives of civil authorities when they are contrary to the demands of the moral order, but no one is obliged to marry a same sex partner. I need not follow that directive of the civil authorities in any way if I choose not to do so. Peter and John chose not to follow the directives of the Sanhedrin. If, however, I am a member of that civil authority and am bound by my job or position to follow a directive contrary to the moral order or natural law, the path of resignation offers itself as the best case scenario. It does not rule out civil disobedience; resignation is a form of civil disobedience.
Second, there is a question, it seems to me, as to whether
the civil authorities have overstepped their competence here, but if they have,
when citizens are under the oppression of a public authority which oversteps
its competence, they should still not refuse to give or to do what is
objectively demanded of them by the common good. What is the common good in
this case for Kim Davis or the citizens of Rowan County? Is it to hold back
marriage licenses from the citizens or to perform the duty for which she was
elected?
Eugene Volokh, writing
in the Washington Post, takes on the particularly American legal and
constitutional aspects of Kim Davis’ case, apart from the Christian theological
aspects. He notes that “sincere
religious objections can indeed legally excuse you from doing part of your job
— if the employer can exempt you without undue cost to itself, its other
employees, or its clients (recognizing that some cost is inevitable with
any exemption request).” He then applies this legal reality to what he calls “the
Kim Davis controversy.”
The first point he
makes is that “Title VII,” which allows for religious exemptions, “expressly excludes elected
officials.” That indicates a different sort of reality for governmental
officials. He goes on to add, though, that “Kentucky, like about 20 other
states, has a state Religious Freedom Restoration Act (RFRA) statute that
requires government agencies to exempt religious objectors from generally
applicable laws, unless denying the exemption is the least restrictive means of
serving a compelling government interest.” This is certainly beyond my
competence or knowledge as a biblical scholar, but Volokh mentions that such an
exemption is what Kim Davis is seeking. He has updates about these exemptions which
have allowed Kim Davis to be released from jail as long as her office, in some
form or another, continues to issue marriage licenses for all who seek them
under the applicable civil laws, which means both heterosexual and same-sex
couples. “However,” Volokh writes, “whatever Davis thinks of the federal
judge’s order, she has to comply with it or risk being jailed again (as of this
update, she has just been released from jail), though she is of course free to
continue appealing the order.”
So, perhaps,
American civil law will allow her a way out of her religious predicament after
all, but if it does not, her next act if she desires to “obey God rather than
any human authority” (Acts 5:29) will be to follow the example of Peter and
John - in general obviously, not in particulars - who were flogged and then ordered
“not to speak in the name of Jesus” (Acts 5:40). Nevertheless, “the apostles
left the Sanhedrin, rejoicing because they had been counted worthy of suffering
disgrace for the Name. Day after day, in the temple courts and from house to
house, they never stopped teaching and proclaiming the good news that Jesus is
the Christ” (Acts 5:41-42). They did not, that is, join the Sanhedrin – not that
they could have done so – or attempt to change the order of the Sanhedrin, but focused
on their religious vocation. As both the
Gospels of Matthew and Luke say, “No one can serve two masters; for a slave
will either hate the one and love the other, or be devoted to the one and
despise the other. You cannot serve God and wealth” (Matthew 6:24; cf. Luke
16:13). Sometimes conscience requires that if you cannot do your job you leave
your job, regardless of the cost.
John W. Martens
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This entry is cross-posted at America Magazine The Good Word
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