In what has perhaps become the face of fundamental Christian resistance to a seemingly un-Godly society, Kim Davis the Kentucky clerk who refused to grant marriage licenses to same-sex couples in defiance of the recent Supreme Court decision, which said that not granting them is unconstitutional, was freed from jail on Tuesday, after being held in contempt of court, to the cheers of thousands of her supporters as she thanked God for her release, but would not say after her five day sentence, whether she would continue to block those licenses, once she returns to work.
"Thank you all so much. I love you all so very much," she said. "I just want to give God the glory. His people have rallied, and you are a strong people. We serve a living God who knows exactly where each and every one of us is at. Just keep on pressing. Don't let down, because he is here. He's worthy."
Davis’ opposition rested on the principle, not only that she answers to a higher power, but that her resistance was based on religious freedom, a concept that many seem to misunderstand, or have misapplied in this case. Simply put, the concept rests on the right for freedom of thought, worship, conscience, and no restrictions, or abridgments of those expressions, and public assembly for those behaviors.
For Davis, that line of defense is inapplicable, but it underscores a weak understanding of not only what religious freedom means, but how it is defined and exercised. In her case, as an elected official she is charged with upholding the rule of law of a government whose laws she swore to uphold. As Geoffrey R. Stone, the Edward H. Levi Distinguished Service Professor of Law at the University of Chicago, said in the Huffington Post, she “simply cannot place her own religious beliefs above those of the constitutional obligations of the state and the constitutional rights of our citizens. Davis should have found a way to reconcile her personal religious beliefs with her official responsibilities, or she should have resigned.”
There are accommodations for religious dissenters, and conscientious objectors to military draft and enrollment, are an example; and during Prohibition, sacramental wine was allowed. But in this case, accomodations for a public official were not possible for the reasons that Stone emphasized. Davis enters the picture by not offering an accommodation, to have, for instance, her deputies issue the licenses,or even recuse herself from the job, based on her religious convictions and beliefs. Had she done so, this would have been in keeping with the history of religious accommodations consistent with our tradition of separation of church and state, enshrined not in the Constitution, but in a letter that Thomas Jefferson wrote to the Danbury Baptists, in 1802, where they complained of the infringement of their religious freedom by their state legislature.
“The Founders understood religious freedom as freedom of worship, essentially a private affair. What's happened is that it's been expanded to include freedom of religious expression and public behavior, which in this case means invoking religious freedom in order to avoid doing part of one's job as a public employee. And, it seems to me one cannot discriminate on the basis of one's religious convictions when doing the work of a government agency,” noted Dr. Ralph Keen, the Arthur J. Schmitt Foundation Chair in Catholic Studies, at the University of Illinois at Chicago.
The central core of Davis’ defiance to federal law is her belief that same sex marriage is contrary to God’s will, as expressed in the Bible. She is unequivocal about that, but placing her in a wider cultural context is equally important. Richard McCarty, Associate Professor of Religious Studies at Mercyhurst University in Erie, Pa, who specializes in intercultural experiences of faith, said in an emailed statement, “That people like Kim Davis are religiously opposed to marriage equality for same sex couples is not surprising. The vast majority of conservative evangelical Christians define marriage very specifically as the union between one man and one woman. What is surprising is that Kim Davis is confused about the difference between religious belief and religious accommodation.”
Agreeing with Stone, McCarty stresses one, perhaps overlooked, aspect of the whole affair: “It appears that Kim Davis has been very selective in her enforcement of religious law. In particular: she draws on a very literal reading of the Bible to oppose legal marriage for same-sex couples, and yet the New Testament—if interpreted literally throughout—does not permit remarriage after divorce. One can only guess that Kim Davis has actually issued marriage licenses for those pursuing second, third, or fourth marriages.”
In fact, many of her detractors have pointed out her own varied marital history as proof of her “wrongness” and accusations of hypocrisy. McCarty cautions that “We ought to be careful, however, not to shame Kim Davis for her sexual and relational life—by doing so, we participate in a very similar moral agenda that Kim Davis is using against same-sex couples. Instead, the issue ought to stay focused on matters of religious accommodation.”
This case also brings up a collison course of sorts, between rights and values.He also thinks that a reflection on other examples might help. Speaking hypothetically, he notes that “Because the issue at stake is one of sexual ethics—and a highly debated one at that—let's imagine another scenario to make sure that our moral and political sensibilities are not skewed by partisan preferences. Imagine, for example, if Kim Davis was a Christian pacifist who was employed as a government clerk who refused to issue "conceal and carry" gun licenses because her pacifist faith opposes the use of lethal force—and thus, her faith opposes weapons that are primarily designed for lethal force against other human beings. [And also] imagine that she did issue gun licenses for hunting animals—something permitted by her faith. Surely we would hear an outcry that she does not have the right to refuse Americans our Second Amendment rights on the basis of her religious ideologies. Surely we would hear a call for her to "step down," or at least for her to direct someone else to issue the licenses. In a similar way, those critiquing Kim Davis are simply saying that while she may have the right to her own religious opinions, she does not have the right to enforce them on everyone else.”
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