Kim Davis, Christianity and Defiance

By Mark Tooley Published on September 6, 2015

There’s a debate among Christians about the case of Kim Davis, the Kentucky county clerk now in jail for refusing to certify same-sex marriages. Should Christian office holders enforce laws at odds with their faith?  Should they resign? Should they practice civil disobedience and risk imprisonment?  Should Christians withdraw from political life altogether?

No regime anywhere has ever completely conformed to Christian thought and practice. Punctilious Christians have always had to balance the demands of their faith as they understand them with the always morally flawed instruments of governance. Every human institution is tainted with human sin and folly, but the state, with its typically uniquely coercive powers, offers special challenges relating to conscience and faith. It is also ordained by God for order and justice.

These issues of faith and statecraft are not new to American politics. Newly elected Senator William Seward electrified and scandalized the public when, while opposing the Compromise of 1850 allowing slavery’s spread into previously prohibited territory, pronounced “there is a higher law than the Constitution.” Martin Luther King Jr. would similarly argue for non-compliance with a “law that is out of harmony with the laws of God and the laws of morality.”

Seward worked against slavery not through civil disobedience but as a statesman through political change. Like Lincoln, he denounced as illegitimate the Supreme Court’s Dred Scott decision denying citizenship to blacks. But rather than direct non-compliance, he championed ongoing political defiance that would render the court’s ruling politically and constitutionally moot, culminating in the 14th Amendment.

King of course advocated more direct defiance, openly and deliberately breaking segregation laws, going to jail, and urging others to follow in an ongoing  civil disobedience campaign primarily appealing to American public opinion through the media. King’s strategy was influenced by Gandhi’s campaign of peaceful but defiant resistance to British rule in India.

As a clergyman working mainly among southern blacks mostly denied franchise, King chose a strategy suitable to his station, time and place. As a rising Senator and former governor, Seward exploited the avenues of influence available to him. Both were reviled by their critics, although Seward did not risk imprisonment. King was ultimately assassinated, and Seward nearly slashed to death in the anti-Lincoln conspiracy.

King essentially had the Constitution on his side and sought to overturn local state segregation laws at odds with it. Seward argued, a century earlier, before the Reconstruction Amendments, that the Constitution did not enshrine slavery but that, even if it had, a higher law rooted in God’s natural creation superseded it.

In Kentucky, Kim Davis argues that forcing her authorization of same-sex marriage violates her right to freedom of religion, protected in the Constitution’s First Amendment. Her critics respond that freedom of religion does not permit officials to defy civil law. But there is in fact no statute that Davis is violating. 

Kentucky’s legislature never authorized same-sex marriage, nor did more than a handful of states, nor did the U.S. Congress through any federal statute. The “law” for same-sex marriage is a ruling from the Gnostic mystic Justice Anthony Kennedy, who discovered in the 14th Amendment, crafted to protect legal equality for freed slaves, a right to state imposed “dignity” for sexual and domestic arrangements outside of natural marriage.

So is Kennedy’s discovery, backed by four other justices, now the “law?” Of course, Supreme Court rulings, however ethereal, are by tradition granted deference until overturned by later rulings or by subsequent Constitutional amendments. Critics of Dred Scott, or the later “Plessy versus Ferguson” ruling for segregation, typically, at least not until King, did not advocate direct defiance but denounced the rulings as themselves unconstitutional, needing lawful correction.

Since Kennedy’s ruminations are effectively the law, or so treated, some Christians advocate that Kim Davis and other local officials like her should resign, since their jobs now obligate their participation in what directly contravenes Christian teaching on marriage. Others commend her witness as the equivalent of MLK resistance, but earning her the hostility of cultural elites who’ve made support for same-sex marriage their totemic litmus test of virtue. Still others urge Kentucky legislative action to clarify that clerks like Davis have conscience exemptions.

Defying the law, even bad laws, including bad court rulings not rooted in law, is potentially dangerous, not just for violators, but for society. Widespread lawlessness and anarchy potentially are more destructive than compliance with unjust or immoral laws. Christians cannot and should not easily and unilaterally ignore or defy any civil law they perceive as egregious. Preferably, bad laws are corrected by good laws, achieved peacefully and persuasively through statutes by legislatures and rulings by judges faithfully administering those statutes.

Historically and globally there are countless complications for Christian service in government.  The New Testament says Christians served in Caesar’s court, even as Caesar persecuted the Church. Should those Christians have remained, quit, offered themselves in sacrifice, and/or organized direct political challenge, although few in number?

Should Christians work for dictatorships? Should Christians work for Islamist regimes when allowed? Should the growing number of Chinese Christians work for their regime even as it periodically torments their fellow believers? Should American Christians work for state governments that subsidize abortion? What about the Christians who work at the courthouse and jail where Kim Davis has been incarcerated? Should they quit?  Should they illegally free her and themselves go to jail?

Should American Christians of past times have worked for segregationist governments or states where slavery was legal? What about members of the U.S. military before the Korean War who served in a segregated armed forces? Should they have resigned, deserted, claimed conscientious objection status, or soldiered on in unjust situations but still morally important struggles, like the war against Hitlerism, and the war against slavery?

And how morally important must an issue be before defiance for Christians is justified? As a Methodist, I don’t like my state’s lottery.  I wouldn’t work for the lottery commission, but should I on principle refuse any state job? Should I stop paying state taxes as a protest? Should I go to jail? What about casinos in other states that are even more objectionable to my Methodist branch of Christianity?

All of these questions are complicated with no quick answers found in brief Bible quotes. They require collective moral discernment and appreciation for our own individual vocations and responsibilities as they relate to a wider panorama of cultural challenges and ethical imperatives.

Unlike many other Christians, I’m not certain judicially imposed same-sex marriage is the decisive tipping point after which our nation is irretrievably lost. Same-sex marriage, practiced by only a very few (after a decade, only about one tenth of one percent of Canada’s population is in same-sex marriages) does not to me seem morally and politically worse than racial segregation or, certainly, slavery, which were far greater affronts to Christianity and natural law.

But of course same-sex marriage is not primarily about same-sex marriage but about overthrowing and stigmatizing traditional morality and religion in favor of an oppressive, highly intolerant secularist orthodoxy coercively and fiercely imposed by mainly non-democratic means, arbitrarily and often without benefit of legal process.

There are likely to be many more ordinary people like Kim Davis who are harassed and jailed for their defiance of this secularist orthodoxy that roots ultimate power and even transcendent authority in unelected elites. Maybe some Christians should avoid some public offices to evade persecution, although such a retreat will have highly negative consequences. 

In any case, our unique historical moment has called forth Kim Davis, not articulating sophisticated arguments but simply courageous faith, to resist the cultural and judicial juggernaut.

Supposedly Henry David Thoreau, when asked why he was in jail for resisting the Mexican War, pointedly responded, “Why aren’t you?” Many Christians and others of conscience may need to answer a similar question, in defense not just of morality but also of liberty and law.

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