Kim Davis might benefit from better counsel. The county clerk is standing firm, refusing to issue marriage licenses to gay couples. But Abraham Lincoln cautioned those in similar situations. “Be sure you put your feet in the right place, then stand firm.”
Ms. Davis is the Rowan County (Kentucky) clerk who was released from jail last Tuesday, having agreed that subordinates in her office can issue marriage licenses to gay couples. U.S. District Judge David Bunning had jailed Ms. Davis after she repeatedly defied the court’s order. She said imposing fines would not change her course of action.
That forced the court’s hand. Judge Bunning said his order was “necessary in this case,” as failing to take action against Ms. Davis would set a “dangerous precedent” by allowing other people to assume they could pick and choose which orders they would follow.
Ms. Davis’s lawyers counter that she is standing firm in her Christian faith. She sees marriage as the union of a man and a woman. Granting licenses to gay couples violates her conscience, according to her attorney. She can’t do it.
Ms. Davis is practicing civil disobedience, which is her constitutional right. There’s a rich history of individuals who follow God practicing the right of refusal. Corrie Ten Boom comes to mind, as does Rahab the harlot. But in contrast to Ms. Davis, these two had their feet planted in the right place.
During the Second World War, Corrie Ten Boom hid Jews in her home as Nazi soldiers sought to murder them. She would lie to the soldiers when asked if she knew the whereabouts of any Jews. That was the right thing to do.
In Joshua 2, we read of a harlot named Rahab who lived in Jericho. The Israelite army was on the move, coming to conquer Jericho. In the providence of God, Rahab had an epiphany—the God of Israel is the One True God. Within days, she also had unexpected guests. Israelite spies, sniffing out the city, came knocking on her door.
That presented a problem. The king of Jericho had his soldiers searching the city, seeking to execute the spies. When soldiers came knocking on Rahab’s door, she lied. She told them the Israelite spies had left the city, when in fact they were hidden on the rooftop of her house. Her civil disobedience is described as “justified” (James 2:25 & Heb. 11:31).
Corrie Ten Boom and Rahab were right to stand firm because they put their feet in the right place. The correct stance is discerning whether evil is being prescribed or permitted.
When civil authorities require individuals to actively participate in evil (i.e., revealing the whereabouts of hidden spies or Jews) civil disobedience is justified. Evil is being prescribed. On the other hand, issuing marriage permits to gay couples is only permitting evil (if you believe same-sex marriage is morally wrong). Ms. Davis is under the authority of the government, so issuing licenses is not prescribing any sort of law. That is the jurisdiction of state and national legislators. Civil disobedience is not justified.
It works the same way with abortion. Couples who believe abortion is immoral are correct to disobey any court order prescribing an abortion for their baby. They should flee or hide the child. But if civil authorities only permit abortions to occur, civil disobedience is not justified. Destroying an abortion clinic is not right. Those opposed to abortion should instead pray for a national change of heart, seek to persuade their opponents, picket, protest, and promote legislation to change laws.
Ms. Davis seems to be confusing her faith with her fiduciary responsibilities as a county clerk. The two can often be at odds. Understanding the tension between prescribe and permit would help Ms. Davis put her feet in the right place. She would then be in a better position to sort out the best place to stand firm.
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Greetings Metz!
Would you feel the same if the “license” being requested was a permit to undergo an abortion?
If an abortion could not be performed without first applying for – and obtaining – a license, (indicating that you qualify to undergo the requested procedure) would Ms. Davis be justified in withholding the license? In this case, I see the license requirement as connected to the showing of entitlement to marry, much as ‘reading the banns’ was done in days past, to prevent multiple marriages, forced marriage, or marriages within a prohibited degree of consanguinity. If we see the granting of a license in that light, then we can see Ms. Davis’ act of issuing the permit as in effect a “blessing” of the contemplated homosexual union as permissible, which we know she will not do.
When Ms. Davis started her career as a public servant, eventually becoming elected County Clerk, homosexual marriages were not permitted – or even contemplated. Her refusal to carry out this new – extraordinary – act not being thrust upon her as a “duty” is not a simple part of her “fiduciary responsibilities as a county clerk.” If, for example, her State passed a law permitting the forcible taking of property from Jews, providing one first applied for – and obtained – a license from the County Clerk, would she be obliged to issue that</i< kind of a permit?
I'm sorry, but I'm seeing your proposed distinction as a distinction without a difference. I grant that opposition to abortion does not justify the destruction of clinics or the murder of the people who work there. I do not, however, base that agreement on a prescribe vs. permit distinction. . . . I see it as based on what I will agree to do (which must be "good") as opposed to what I will refuse to do (which is that which is "bad").
In this case, Ms. Davis is refusing to do what she knows as "bad". She is not trying to justify having done bad, in the cause of an ultimate good.
Or am I misunderstanding your argument?
Respectfully,
marble.
Oops: “not” should read “now”, as in: Her refusal to carry out this new – extraordinary – act now being thrust upon her as a “duty” is not a simple part of her “fiduciary responsibilities as a county clerk.”
Mike, I agree with much of what you write but not on this one. I agree with marble.
Marble:
It seems to me that you misread my central point. Ms. Kim has the right to resist but not disobey the law. Big difference. Resistance can include going to jail (ala Martin Luther King, Jr.) or resigning. But she does not have the right to disobey the law of the land–even if she disagrees with it–any more than you and I have the right to not pay taxes because we feel some of that money goes to causes we feel go against scripture. It would be anarchy if every citizen feels free to disobey every government mandate they disagree with. We are to render unto Caesar what is Caesar’s. If you don’t like what Caesar mandates, resist. Resign. Go to jail. But Ms. Kim’s case does not rise to the level of civil disobedience, even if the law changed after she came to work as a county clerk. Nothing is being “thrust” on her. She made a decision yard ago to work as a civil servant, vowing to uphold the laws of the land.
Oops! Ms. Kim made a decision “years” ago to work as a civi servant (not “yard”).
In her duly elected position as County Clerk, Kim Davis’s signature appears on each marriage license issued in her county in Kentucky. Due to unforeseen recent events, she now equates this with officially authorizing any same-sex marriages that occur in her jurisdiction.
Using Mike’s two analogies, this would be like Ms. Davis’s signature suddenly being required — due to an unprecedented edict from the U.S. Supreme Court — on authorizations for each abortion and infanticide that occurs in her county’s medical facilities.
Or (pacé Rahab) for Ms. Davis’s signature to appear on all law-enforcement shoot-to-kill orders which, due to a previously unimaginable Supreme Court decision, are suddenly being directed against religious leaders who refuse to toe the government’s party line on, say, publicly affirming same-sex marriage from their pulpits.
Ms. Davis specifically asked that an accommodation be provided, through a change in Kentucky state law, where the signature of the County Clerk no longer appears on marriage licenses. Many states follow such a protocols on legal documents, so this is a relatively simple solution to Ms. Davis’s and others’ dilemma of conscience. If her deputies simply issue the marriage documents, Ms. Davis’s signature would still be printed on each license as the authorizing official.
As I understand it, Kentucky’s governor chose not to call the state legislature in to address this problem, so Ms. Davis suspended her county office’s authorization of ALL marriage licenses until a remedy could be found. Couples desiring a marriage license can simply drive to a neighboring county office and receive their license there.
Ms. Davis did not seek and was not elected to the office of County Clerk under a regime where she was required to legally authorize same-sex marriages. She has not told any couple that they are “not permitted” to marry; only that (due to unforeseen circumstances since the Supreme Court’s decision on June 29, and until the state of Kentucky amends the County Clerk names appearing on marriage documents) couples in that county will need to go to another county office to receive their license.
The homosexual pair that showed up in Ms. Davis’s county office to file for a marriage license drove over from Ohio, with a media entourage in tow. The two men had no particular reason to apply for a marriage license in Ms. Davis’s jurisdiction, other than to force the issue — requiring Ms. Davis to either violate her conscience or (as it turns out) be put in jail and turned into a national piñata.
Ms. Davis did not seek this dilemma. It was thrust upon her by our culture’s rapidly shifting moral and legal landscape. Her requests to the state of Kentucky for some reasonable accommodation went unrequited. Her options are to resign from her elected position, be impeached for not fulfilling her (new) obligations as of June 30, violate her conscience, or risk going to jail until a solution can be found.
The citizens who elected Ms. Davis are not calling for her to resign or for her to be impeached for violating her office. Ms. Davis is honoring her Christian conscience, as best she can determine. So she submitted to imprisonment, quietly thanking the judge for his decision even though she did not concur with it or wish to go to jail.
In our hypotheticals above, Ms. Davis would not be “prescribing” abortion, infanticide or police shoot-to-kill-a-recalictrant-pastor licenses, merely “permitting” them under her auspices as County Clerk. In such a situation, if she sought some accommodation for her conscience, most Christians would commend and support her.
My guess is that Ms. Davis’s feet are in a better position than many of those currently critiquing her from the safety and simplicity of the sidelines. Her attempt to remain faithful — as best she and her counsel can determine — is thrusting her into a lion’s den (to employ another biblical analogy).
Those of us observing from the stands and on TV do well to pray for and support her. For all of Ms. Davis’s brokenness and limitations, biblically she may be the heroine in this sad chronicle of our time.
I agree with Kent Dahlberg. At a less particular level, at the end of the day, right is right and wrong is wrong. Where do I stand with my feet? I must stand with Ms. Davis’s rare public stand of conscience. It seems strange that her stand of conscience is so uncommon in the face of eroding morality in our culture that it has become a glaring abstraction to our lethargy and rationalization.
Kent,
Thanks for including additional specifics that lead to this situation. I admire Ms. Davis for her patience and her gentleness during this trial of her faith, which is not over for her.
As a fellow citizen, I appreciate Ms. Davis resistance to the unconstitutional overreach of the Supreme Court and the Federal government for matters that belong to the States. Her resistance magnifies the error of it.
I anticipate that history will show that the most significant barrier to freedom of speech was the freedom of religion.
It appears that the present objective in the culture is not equal rights for same sex couples but that the phrase “marriage is between one man and one woman” should be treated as a hate crime.
I also find it an assault on personal liberties that the judge took it upon himself to forgo normal due process (i.e. start with a fine), because he concluded she would be guilty of further offense. Prudence would have forgone unnecessary escalation.
Granted Ms. Davis may still have gone to jail, but the Judge would have done well to have shown patience and restraint in executing the law rather than intimidation.
It is my understanding that the judge did indeed exhibit patience and restraint. He reluctantly jailed Ms. Davis. That is not intimidation.
Thanks, Mike. I must be misinformed. I will broaden my reading and adjust accordingly.
I may not leave a reply often, but I look forward to every Monday morning to reading your post.
Mike,
I believe Gerard’s closing comments refer to procedural approach, not the personal attitude of the judge as he put Ms. Davis in jail.
Prior to the recent judicial imposition of same-sex marriage by fiat, a number of city and county and state officials began granting same-sex couples marriage licenses — in complete defiance of laws they swore to uphold when rising to their roles as public servants.
Please refresh our memory as to who and how many of those provocative officials — who would not back down from acting on their conviction that same-sex marriage should be permitted in their jurisdictions — were thrown in jail. Even those who were jailed “reluctantly” by a “patient, restrained and non-intimidating” judge.
Offhand, I cannot recall any. I think that speaks to Gerard’s point.
I stand with Rand (Paul) on this issue. The government has no business regulating the church’s view of marriage. So why do we let it?
Did Moses issue marriage licenses? No. He did not. Did God command a couple who wanted to be married in the Old Testament to obtain a marriage license from the government first? No.
What marriage has become as a state recognized contract is not what the Bible, Old Testament and New Testament, defined as marriage.
I find that this debate is a non-issue and separates us from the world unnecessarily. How are Christians being salt and light while demanding that non-Christians follow our teachings before conversion?
I Corinthians 5:9-10 I wrote to you in my letter not to associate with sexually immoral people—not at all meaning the people of this world who are immoral, or the greedy and swindlers, or idolaters. In that case you would have to leave this world.
Kent
You are apparently more acquainted with individual state and county officials and their cases than I am. I cannot speak to other officials. I’m taking Judge Banning at his word – that he tried to accommodate Ms. Davis while upholding the laws.
Regardless of the circumstances that gave rise to Ms. Davis’s situation, tell me how you’d respond to this scenario: Let’s say you work in the county permit office. You issue electrical and plumbing permits. A contractor applies for two permits (electrical and plumbing) for an abortion clinic. The water and power lines that he will install will be used by clinicians in performing abortions.
What would you do?
it seems that we’re unclear on how issuing a permit is not giving sanction to something. If you are a military officer, and the US Supreme Court deems that same-sex marriages are legal, and your commanding officer says you must allow–permit–two men in your brigade to get married, what do you as an officer? You can refuse but you must be willing to suffer the consequences (court martial, etc). You can resign. But you cannot instigate an insurrection by refusing to resign (or be relieved of command) while willfully disobeying the lands of the land.
I urge you to read Peter Wehner’s comments on this issue: “The Wrong Fight for Christians to Wage.”
https://www.commentarymagazine.com/culture-civilization/religion/christianity/the-wrong-fight-for-christians-to-wage/
How it is seen http://www.newyorker.com/news/daily-comment/kim-daviss-cafeteria-government?
Is democracy to be ignored for a theocracy ? What currency of politics are we trading ?
What would Jesus have done ? What protests could Daniel, Joseph etc have made ?
The appropriate response is to resign her position as clerk, which as a critical job requirement, must implement and execute the law. She could publish her resignation in any paper willing to print it then protest to her heart’s content in front of the courthouse. In that government position, she does not have the authority to deny anyone what has been deemed a legal right, no matter how distasteful.
One man’s opinion.
I agree with Chris. In taking this stand, Ms. Kim holds in tension her faith and her responsibilities as a clerk.
Mike, et al,
The below Washington Post article is supremely helpful in outlining the history and virtue of conscience accommodations in this country. It also provides some really good insight to the last hypothetical that you Mike wrote in regards to the permits for an abortion clinic.
What if you are postal worker, who is a pacifist, and you are asked to process draft requests? This country encourages the employer to provide reasonable accommodations. Resign or do it, is not the binary option.
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/09/04/when-does-your-religion-legally-excuse-you-from-doing-part-of-your-job/
Christopher, North Carolina shows Kentucky, and us all a better way. Again, resign or do it, is not the only option. That, as a philosophy, is not ‘American’ as the Post article shows. Here’s the NYT giving great insight.
http://www.nytimes.com/2015/09/07/opinion/we-dont-need-kim-davis-to-be-in-jail.html?_r=0
Thanks for links Jeff, very enlightening.
Sorry, did not keep up with the comments! Re: your hypothetical, Metz, I see a permission to install wiring as different from a permission to perform an abortion. Here is where I see the Permission/Prescription difference as helpful. The electricity will not prescribe abortion, but it may permit it to take place. . . .
Likewise, the clerk stamping approval on the permit is not approving abortion, she is is approving electricity. (Although, yes, electricity for people who will probably use it for abortion). A permit for an abortion (which is currently legal, mind you) would be a very different thing, and one which bring about the conscience difficulty that I think most closely resembles Kim Davis’ current predicament.
You say she has the “right to resist but not to disobey the law of the land.” I don’t see how you see Kim Davis’ refusal as an unjustified disobedience, and I still fail to understand why you find her case does not rise to the level of civil disobedience. Is not resistance – and potentially going to jail – the very point of civil disobedience? Is not resisting – and respectfully refusing to obey an unjust law. . . . . Ah! Now I see your point! I think.
You claim that the law in question does not affect her, personally. No one is commanding her to marry a woman. [?] And I do see your point about whether the act called for is a direct evil or could only potentially lead to evil. . . . But even there, there’s a problem. Kant, for example, would draw the line even closer to the direct evil, and mandate that Rahab tell the truth. Telling the truth doesn’t kill the spies, after all. Each of us is ultimately responsible for our own actions.
Thus, issuing electricity permits does not cause an abortion, even if the now-permitted electricity is subsequently used for that purpose.
And also likewise, issuing a homosexual marriage permit does not cause homosexual marriage; it merely permits it to take place at a later date. It is, however, a condition precedent, and requires more of the clerk than does the issuance of an electric license. It requires her to approve the underlying act itself, and to state that the two who have presented themselves in front of her as candidates are suitable to engage in that act.
Perhaps we would do better, to see the issuance of the homosexual “marriage” permit as requiring Ms. Davis to engage in a speech act, affirming that homosexual marriage is permissible behavior?
I do see the danger of trying to carve out a multitude of ‘conscientious objections’ to a variety of moral objections, whether it be to homosexuality, alcohol, women’s dress, or the use of profanity. . . . In a free democratic society, neither the least moral nor the most moral gets to call the shots for everyone.
This has been a fascinating discussion!