I Don’t Support Gay Marriage, But Kim Davis is Wrong
By Ken K. Gourdin
Unless you’ve emerged from under a rock very recently or don’t follow current events beyond what happens on the latest episode of Survivor, you know that Rowan County, Ky. Clerk Kim Davis recently was held in contempt of court and jailed for her refusal to issue marriage licenses to gay couples. Ms. Davis is entitled to her fervently-held religious convictions as to what God thinks of gay marriage. She also is entitled to allow those convictions to guide her actions and expressions about gay marriage—and other issues that are likely to be informed by one’s religious convictions—in many arenas of her life. My religious tradition holds: (1) that marriage between a man and a woman is ordained of God; and (2) that sex outside of marriage is wrong. I suspect that Ms. Davis’s views are similar, and that her views on those issues are informed by her religious convictions, just as her views on gay marriage are.
Just as Ms. Davis does, I, too, disagree with the recent decision of the United States Supreme Court in Obergefell v. Hodges holding that gay marriage is now the law of the land in all 50 states. Just as I suspect Ms. Davis does, I agree with the justices in the minority, who saw no reason to depart from long-established Tenth Amendment precedent leaving marriage as a matter to be decided by the citizens of each of the respective states. All of that having been said, here’s the thing: Ms. Davis is a public official. As a public official, she is bound to follow the law as it is proclaimed by the United States Supreme Court, even if she disagrees with it.
While I would be sympathetic to Ms. Davis if she were to invoke a civil disobedience argument, I suspect that, like many people who proclaim their right to civil disobedience, Ms. Davis wants to have her cake and eat it, too: civil disobedience entails acting upon one’s conscience in contravention of, e.g., a court opinion proclaiming gay marriage as the law of the land in all fifty states—and accepting the consequences of that choice, including such legal consequences as being held in contempt and being subject to whatever penalty a court, in its sound discretion, sees fit to impose for one’s civil disobedience. That is so even if that penalty entails being held in contempt and jailed, or losing one’s job because she can no longer, in good conscience, perform all of the duties associated with the position to which the people of her jurisdiction elected her.
Ms. Davis’s position is no different than that of, say, a police officer who believes, for example, that marijuana is comparatively harmless (and may even be beneficial in many circumstances) and that it, therefore, should be legalized. If marijuana is illegal in his jurisdiction, and if he were to refuse to arrest someone for a marijuana-related offense, I would expect his superiors to impose appropriate disciplinary action. If he were to say, “I’m simply exercising my right to civil disobedience,” I would say, “Fine. Then you will acquiesce without complaint to whatever adverse consequences may ensue as a result.”
I’m reminded of the Scripture in the Holy Bible in which his detractors, in an attempt to entrap Jesus, asked him if it was lawful to render tribute to Caesar. I won’t claim to know the mind of the Lord of the Universe, but it wouldn’t surprise me if, on a personal level, he felt the same way about taxes imposed by the Romans as many of his countrymen did. He probably didn’t like them very much, and he probably questioned many of the uses to which the government revenue they generated were put. On a personal level, he probably had more than a few reasons to disclaim the necessity of paying taxes to the Romans, but he didn’t do that. What did he say, instead, in response to their disingenuous query? He said, “Render unto Caesar that which is Caesar’s, and unto God that which is God’s” (see Luke 20:25 in The Holy Bible).
And I would tell Ms. Davis the same thing. As a public official, she doesn’t get to pick and choose the laws with which she will comply and those with which she will not—what she will “render unto Caesar”; she will “render unto Caesar” what the law says she must—or she will face the consequences. Yes, marriage was a religious institution long before the government ever got involved. Yes, there are, in my view (and in the view of many others, both religiously devout and not) important distinctions that make opposite-sex marriage profoundly different qualitatively than its same-sex counterpart. No, I don’t believe that religious “freedom” as those who crafted the First Amendment intended it should be circumscribed to mean (as courts have done so commonly in recent years) the “freedom” to do and to say what one wishes—within the walls of one’s holy place on one’s holy day.
All of that having been said, the fact still remains that Ms. Davis is wrong: She may not agree with the consequences of Obergefell v. Hodges as they relate to how she does her job, and, on a personal level, she’s entitled to feel however she wishes about those consequences. But that doesn’t excuse her from doing her job as the Supreme Court now construes it. She’s entitled to invoke her right to civil disobedience—as long as she is prepared to deal, without protest or complaint (though that does not, in my mind, include foregoing public statements about why she’s doing what she’s doing, lest her act of civil disobedience lose its impact), with whatever consequences happen to ensue as a result, even if those consequences include getting thrown in jail or losing her job.
Update, September 26, 2015: Judge Andrew Napolitano Agrees With Me – One who disagrees with me might dismiss the foregoing as the mere ramblings of a minimally-credentialed, minimally-academically-capable dimwit. Fine. But Judge Andrew Napolitano, who is far better credentialed and far more academically capable, agrees with me. In a recent column that I found at Jewish World Review (see here, last accessed September 25, 2015: http://www.jewishworldreview.com/0915/napolitano091015.php3) Napolitano writes:
The Free Exercise Clause guarantees individuals the lawful ability to practice their religion free from government interference. It does not permit those in government to use their offices to deny the rights of those who reject their beliefs. That is the lesson for Kim Davis.
Napolitano also has an interesting solution to Davis’s dilemma which would safeguard her right to remain true to the conscience of her religious convictions. He writes:
I would have removed her authority to issue marriage license applications and assigned it to others in the Kentucky state government, and directed them to issue the applications in accordance with the law. That would have kept Davis free and her conscience clear, and permitted those in Rowan County to get married to whom they choose.
Napolitano’s proposed solution is a good one for the Davis case, but, as an ad hoc measure, it does not address the wider potential problem of public officials in general being compelled to act against their religious conscience. One potential solution to the wider problem is to include qualifying language in statutes that outline the duties of public officials. For example, a statute directing county clerks to issue marriage licenses could state that such duties must be performed by the clerk—or by her designee.
Update, October 21, 2015: Lo and Behold, Elder Dallin H. Oaks Agrees With Me, As Well!
By Ken K. Gourdin
And not only does Judge Andrew Napolitano agree with me, no less of a keen legal intellect than former University of Chicago law professor, former U.S. Supreme Court clerk, and former Utah Supreme Court Justice Elder Dallin H. Oaks, now of the Quorum of the Twelve Apostles of the Church of Jesus Christ of Latter-day Saints does, as well. Elder Oaks recently addressed the Second Annual Sacramento Court/Clergy Conference. In his remarks, just as I did in the foregoing post, Elder Oaks invokes the Savior’s teaching regarding striking an appropriate balance between respect for religious conviction and respect for civil law. He says:
The Lord Jesus Christ directed, “Render therefore unto Caesar the things which are Caesar’s; and unto God the things that are God’s” (Matthew 22:21). So taught, we must, to the extent possible, obey both systems of law. When there are apparent conflicts, we must seek to harmonize them. When they are truly irreconcilable, we should join with others of like mind in striving to change the civil law to accommodate the divine. In all events, we must be very measured before ever deciding—in the rarest of circumstances—to disregard one in favor of the other.
Similarly, he also encourages believers to submit to laws which appropriate authority has deemed constitutional, even if believers disagree with them—as I also did in the foregoing post. He says:
Believers should also acknowledge the validity of constitutional laws. Even where they have challenged laws or practices on constitutional grounds, once those laws or practices have been sustained by the highest available authority, believers should acknowledge their validity and submit to them. It is better to try to live with an unjust law than to contribute to the anarchy that a young lawyer named Abraham Lincoln anticipated when he declared, “There is no grievance that is a fit object of redress by mob law.”
Elder Oaks says that while, like everyone else, government officials are entitled to their personal beliefs and opinions, they are not entitled under the law to refuse to perform duties the government says they must perform, regardless of their personal beliefs and opinions regarding any of those duties. He says:
Clear cases for the application of this principle are the public officials in the executive or judicial branch who enforce and interpret the laws. All such officials take an oath to support the constitution and laws of their jurisdiction. That oath does not leave them free to use their official position to further their personal beliefs—religious or otherwise—to override the law. Office holders remain free to draw upon their personal beliefs and motivations and advocate their positions in the public square.
Later in that same paragraph, while not mentioning her by name, Elder Oaks clearly refers to Kim Davis. Elder Oaks says that free religious exercise must be limited by the government’s responsibility to protect its citizens. Later in his address, he says:
[I]n a nation with citizens of many different religious beliefs, the right of some to act upon their religious principles must be circumscribed by the government’s responsibility to protect the health and safety of all. Otherwise, for example, the government could not protect its citizens’ person or property from neighbors whose intentions include taking human life or stealing in circumstances purportedly rationalized by their religious beliefs.
I have no problem agreeing with the general principle that the government has a responsibility to ensure the health and safety of its citizens. However, where do I part ways, at least slightly, with Elder Oaks is that I know of no religion, the adherents of which claim a right to engage, unhindered, in theft or in murder as a religious principle. No serious, sane person would argue that theft or murder is a valid exercise of religious freedom, and I have to wonder whether at least some who invoke this hypothetical analogy do so because they quickly would become uncomfortable trying to defend real-world unwarranted government intrusions into religious free exercise.
For example, I doubt Elder Oaks agrees with the decision of the United States Supreme Court in Reynolds v. United States, 98 U.S. 145 (1878), the decision outlawing plural marriage. Indeed, the Reynolds court resorted to similarly strained reasoning, apparently concluding that if plural marriage were allowed, there would be nothing to bar someone from claiming a religious right to practice human sacrifice with which, under the First Amendment’s Free exercise clause, the government could not interfere. It’s easy to say that Free Exercise should not include a right to practice human sacrifice, and one of the reasons why its so easy is because no religion actually does that. It’s far harder to draw a clear line that justifies legitimate government intrusion while, at the same time, protecting genuine religious practice. Further, the analogy also fails because murder is malum in se (that is, it is morally wrong in and of itself) while plural marriage simply has been declared malum prohibitum (wrong simply because the government says it is).
The Reynolds Court’s distaste for plural marriage apparently was based on an ad populum argument: most everyone thinks plural marriage is wrong, therefore, it must be.
And I know, based on other things Elder Oaks has said, that he wouldn’t support turning that argument on its head, using it to support gay marriage and concluding that most everyone thinks gay marriage is right, therefore, it must be. Rather, I suspect Elder Oaks would say, as President David O. McKay is reported once to have said, “Wrong is wrong, even if everybody listens to it, believes it, or does it; and right is right even if nobody listens to it, believes it, or does it.”
I’m also less sanguine that Elder Oaks that the majority’s reasoning in Obergefell v. Hodges will result in continued protection the status quo for religious exercise. All the majority had to do to do that was to say, “Nothing in today’s decision disturbs our previous precedents with respect to Free Exercise,” but it did not do that. Rather, it magnanimously granted the devout the more narrow privileges of continuing to “believe” and to “teach” as they wish with respect to homosexuality and to gay marriage. Neither of those caveats individually nor both of them standing together are as expansive of a conception of Free Exercise the drafters of the First Amendment envisioned it.
With those caveats, I agree with Elder Oaks’ overall point that people of good faith and good will on both sides of the boundary between church and state can and should foster a spirit of mutual respect and peaceful coexistence. I also agree that his general principles for advancing a respectful dialogue among those with competing positions also are very helpful, not only with respect to discussions of gay marriage vis-a-vis religious freedom or with respect to issues of separation of church and state, but with respect to public discourse generally. They are:
First, parties with different views on the relationship between church and state should advocate and act with civility. . . . Second, on the big issues that divide adversaries on these issues, both sides should seek a balance, not a total victory. . . . Third, it will help if we are not led or unduly influenced by the extreme voices that are heard from contending positions.
His advancing age notwithstanding, I hope Elder Oaks is able to continue to lend his considerable legal acumen and intellect, and his sensible, reasonable voice (not to mention being part of a fifteen-person body that I believe reveals the will of God to His Church!) to discussions on issues impacting religious freedom for years to come.