If you’ve been following the news, you may have read that Kim Davis, a Rowan County Clerk of Court in Kentucky, is refusing to sign gay marriage licenses, which she is required to do since a recent US Supreme Court decision legalized gay marriage across the country. She has argued (and lost) that being required to sign those licenses violates her freedom of religion. Because she is an elected official, she can’t be immediately fired, but she is facing misconduct charges that could lead to fines, imprisonment, and removal from office. It’s a somewhat lengthy process requiring a trial, though, and only the State of Kentucky can remove her from office, not the county.
UPDATE: As of September 3rd, 2015, Kim Davis has been jailed for contempt of court but not yet removed from office. She was released on September 8th, 2015 on the condition that she did not interfere with deputy clerks signing marriage licenses. If you view images of the Rowan County marriage license, the Clerk of Court’s name does not automatically appear on the form nor is her own signature required. This whole issue was really a non-issue in terms of her own religious freedom, as she was never required to sign anything nor to release any document that had her name on it. Commentary below was written before these details were publicly available, so it was assumed that Davis had to sign these documents to do her job. I’ve made slight modifications.
There seems to be a good bit of confusion about freedom of religion and about the principles of civil disobedience related to this issue that I’d like to address.
First, people have the right to be bigots.
Next, people have the right to disagree with or oppose gay marriage.
But, people don’t have the right to act like bigots in some contexts, especially as functionaries of the state at any level (city, county, state, federal). They don’t have the right to act like bigots even in any private setting: we don’t have segregated restaurants, barbershops, schools, and bus seating for that reason.
Employees of the state don’t have the right to choose which laws they will uphold and which laws they will not while remaining an employee.
So, get this — Kim Davis has the right to refuse to sign gay marriage licenses, whether you think that’s a bigoted act or not. But she does not have the right to refuse to sign gay marriage licenses and remain in her job, and she certainly doesn’t have the right to prevent any of her employees from doing their jobs. She doesn’t have to sign gay marriage certificates, but she doesn’t get to determine, single-handedly, the rule of law.
We never have to do anything, much less everything, that the state tells us. Members of religions that are pacifist are exempt from military service, but that means that they don’t serve in the military. Being a pacifist means you don’t serve in government in that way. It doesn’t mean you get to serve in the military and then choose which orders you disobey and which you obey.
This is where the principles of civil disobedience come into play. Civil disobedience understands the state and the individual as being in a contractual relationship: if the individual obeys the laws of the state, the individual gets to participate in the life of the state and receive its benefits. If the individual does not obey, he or she suffers the consequences: loss of freedom, or fines, or loss of benefits.
What acts of ethical civil disobedience do is recognize the validity of the law by disobeying it and then accepting the consequences. That’s the difference between acts of civil disobedience and criminal behavior: those engaged in civil disobedience accept the consequences of breaking the law, get arrested, and fight it out in court. Criminals just break the law for their own benefit and refuse to accept the consequences.
So no, Kim Davis does not have to support gay marriage. She does not have to sign gay marriage certificates if she does not want to. She can avoid doing so by stepping down from her position: if the state asks her to do something that violates her conscience, she doesn’t have to do it. But by refusing to carry out the law and remaining in her position, or actively preventing others from doing their jobs, she’s avoiding the consequences.
She’s not being a hero. She’s acting like a criminal, largely because she is making her individual conscience out to be legally equivalent to US law by imposing it upon others. While she has the right to follow her own conscience, she doesn’t have the right to require others, through the power of the state, to do so as well above and beyond the rule of law.
The only ethical choices here are to do your job or step out of it.
If you’d like to see exceptional examples of state employees carrying out their duties ethically, you might want to read about the African American police officer who helped a member of the KKK during a rally, or maybe just remember the image to the left.
I would like to add a postscript here about Christian civil disobedience. It’s necessary because the Kim Davis case has added a religious component to this debate. Because Christians were persecuted for about three to four hundred years at the beginning of Christianity, and still are in some parts of the world, principles of Christian civil disobedience were established by church leaders early on to distinguish between Christian acts of civil disobedience and simple lawbreaking.
Traditionally, Christians are ethically required to engage in civil disobedience under two conditions:
- The State forbids what God commands. For example, if the State ever forbade Christians to meet, the church would say that Christians should do so anyhow, as they have been commanded to do so.
- The State commands what God forbids. For example, if the State were to command Christians to worship the emperor, the church would say that Christians should refuse to do so, because they have been commanded not to worship idols.
But the conditions under which Christians are not to engage in civil disobedience include:
- The State allows what God forbids.
The State always has to allow at least some immoral behavior. This applies to both gay marriage itself and its detractors, as people on one side of the debate believe that gay marriage is sin, while people on the other side of the debate believe that opposition to gay marriage is bigotry. The result of attempting to legislate all immorality out of existence would be worse than immoral behavior itself, as it would (unsuccessfully attempt to) eliminate human freedom and create massive totalitarian states.
This principle is important both as a principle of Christian civil disobedience and as a part of secular law: it is the principle that both allows Kim Davis to be a bigot and allows for gay marriage to begin with, regardless of anyone’s opinion about the morality of either. If God allows human beings to sin out of respect for human freedom, which seems to be the message of the story of Adam and Eve or of the prodigal son, so should the State. The question that we all have to negotiate as a society — among ourselves — is what sins we allow and which we attempt to legislate away. We’re pretty clear on murder, but we’re still arguing about different kinds of pornography and about prostitution. We’re still arguing about gay marriage, but that argument has recently been legally resolved by SCOTUS in terms of the law, at least. So we can continue to argue about it, but short of a Constitutional amendment banning it, gay marriage is now legal.
What should be obvious, though, is that even from a very traditionally Christian point of view, both gay marriage and abortion fall under the category of allowing what God forbids. As a result, neither of these meet the conditions under which Christian civil disobedience is either warranted or required. Human beings are free, which means they are free to commit acts that you think are wrong, and even acts that they think are wrong. If you respect your own freedom, you need to respect the freedom of others.