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John W. MartensSeptember 09, 2015

Kim Davis’s convictions, like so much of religious thought in the United States, is a mish-mash of American civil religion, the Bible, the Constitution and the invocation of freedom. One of the quotations which looms large biblically in the claim of religious freedom for Christians is found in Acts 5. Peter and John have been arrested and imprisoned on the Temple mount for preaching in Jesus’ name. Miraculously freed from prison, they continue to teach in Jesus’ name. When they are rearrested they appear once again before the council:

Then the captain went with the temple police and brought them, but without violence, for they were afraid of being stoned by the people. When they had brought them, they had them stand before the council. The high priest questioned them, saying, "We gave you strict orders not to teach in this name, yet here you have filled Jerusalem with your teaching and you are determined to bring this man's blood on us." But Peter and the apostles answered, “We must obey God rather than any human authority” (Acts 5:26-29).

This has been, since the origins of Christianity, a significant issue: what to do when the demands of civil law conflict with what are understood as divine commands or prerogatives?

The depth of Kim Davis’s convictions can only be ultimately judged by God and her, but her willingness to flout the civil law in order to maintain her religious convictions has a long and noble history in Christianity. All of us would recognize, for instance, that laws entrenching slavery were wrong and those who fought against these laws were on the side of the angels, even when those laws had the strength and support of government and civil law.

The big difference between Kim Davis and many predecessors in these battles, including the early Christians and including Peter and John in Acts 5, is that they were not tasked with upholding governmental laws. Kim Davis is an elected member of the government and it is her responsibility to follow the law. It is clear that if she does not wish to follow the law, and cannot with a clear conscience or with a religious exemption she can maintain, she should resign her position.

It is not just the earliest Christians, martyrs such as Felicity and Perpetua, Polycarp and Ignatius, who were willing to stand up to laws which they could not follow, and so die for their convictions, but even Christians today find themselves in these positions, even if martyrdom is not usually the result in the United States. One of the reasons you will not find an Old Order Mennonite or member of the Amish community wrestling with their conscience as to whether to issue a license for a same-sex marriage as a county clerk is that they long ago made the decision to opt out of the governmental and electoral process to preserve their Christian integrity, just as the earliest Christians did in the first three centuries. Believing that there was to be a strict separation between state and church, they found the simplest way to maintain that integral separation by choosing not to participate in the political process or to seek elective office. While maintaining the authority of the state, for instance to bear the sword (Romans 13:1-7), Mennonites and the Amish see the focus of their community life to be the locus of moral authority, punishment and reconciliation. As Paul writes in 1 Corinthians 5,

I wrote to you in my letter not to associate with sexually immoral persons—not at all meaning the immoral of this world, or the greedy and robbers, or idolaters, since you would then need to go out of the world. But now I am writing to you not to associate with anyone who bears the name of brother or sister who is sexually immoral or greedy, or is an idolater, reviler, drunkard, or robber. Do not even eat with such a one. For what have I to do with judging those outside? Is it not those who are inside that you are to judge? God will judge those outside. “Drive out the wicked person from among you” (1 Cor 5:9-13).

Two key verses come at the end with the focus on judging those “inside” the church, but not judging those “outside” the church. The church’s judgment and authority, therefore, is an internal and not external matter.

Although it seems a radical position today, it was the position of the early church prior to Constantine. Most of us, however, certainly most Catholics, fit more into an Augustinian, or post-Constantinian, position in which we participate in both the city of God and the city of man in more formal ways, such as voting and seeking elective office. Then, of course, the laws of the world impact us in different ways and call upon us to engage in them in different ways. If Kim Davis has found a law which she cannot enact, and cannot do so even with a religious exemption, then she must heed her conscience and remove herself from that role. She must serve God and not human beings. But she cannot stand in the way of these laws either as an elected official. Religious integrity calls on her to heed her own conscience, but not dictate the conscience of others. They too have the right of their consciences.

Many commentators have taken this position, including the biblical scholar Candida Moss, and I do believe it is the Christian position, because Kim Davis, free of the burdens of her office could then argue against the legislation if she chooses or silently reject it. Her conscience is her own and she must honor it.

Two others, however, have claimed that there are ways around her resigning her position. Monsignor Pope, writing in the National Catholic Register,  believes that the law regarding same-sex marriage is not just an “unjust law,” but “despotic and shameful abuse” and so worthy of civil disobedience by Kim Davis in her position as county clerk (he cites CCC, 1902-1903 in reaching this conclusion).  Elsewhere in his article he cites CCC, 2242, which I quote directly from his article:

“When citizens are under the oppression of a public authority which oversteps its competence, they should still not refuse to give or to do what is objectively demanded of them by the common good; but it is legitimate for them to defend their own rights and those of their fellow citizens against the abuse of this authority within the limits of the natural law and the law of the gospel. (2242)

There are times as well when Civil Disobedience is required of us. The Catechism says in the same place: 

The citizen is obliged in conscience not to follow the directives of civil authorities when they are contrary to the demands of the moral order, to the fundamental rights of persons or the teachings of the Gospel. Refusing obedience to civil authorities, when their demands are contrary to those of an upright conscience, finds its justification in the distinction between serving God and serving the political community. "Render therefore to Caesar the things that are Caesar’s, and to God the things that are God’s." "We must obey God rather than men": (2242)

There are two issues with his position, however, which I think still demand that the result be that Kim Davis resign her position if a satisfactory religious exemption cannot be found. First, the Catechism says that, The citizen is obliged in conscience not to follow the directives of civil authorities when they are contrary to the demands of the moral order, but no one is obliged to marry a same-sex partner. I need not follow that directive of the civil authorities in any way if I choose not to do so. Peter and John chose not to follow the directives of the Sanhedrin. If, however, I am a member of that civil authority and am bound by my job or position to follow a directive contrary to the moral order or natural law, the path of resignation offers itself as the best case scenario. It does not rule out civil disobedience; resignation is a form of civil disobedience.  

Second, there is a question, it seems to me, as to whether the civil authorities have overstepped their competence here, but if they have, when citizens are under the oppression of a public authority which oversteps its competence, they should still not refuse to give or to do what is objectively demanded of them by the common good. What is the common good in this case for Kim Davis or the citizens of Rowan County? Is it to hold back marriage licenses from the citizens or to perform the duty for which she was elected?

Eugene Volokh, writing in the Washington Post, takes on the particularly American legal and constitutional aspects of Kim Davis’ case, apart from the Christian theological aspects. He notes that “sincere religious objections can indeed legally excuse you from doing part of your job — if the employer can exempt you without undue cost to itself, its other employees, or its clients (recognizing that some cost is inevitable with any exemption request).” He then applies this legal reality to what he calls “the Kim Davis controversy.”

The first point he makes is that “Title VII,” which allows for religious exemptions, “expressly excludes elected officials.” That indicates a different sort of reality for governmental officials. He goes on to add, though, that “Kentucky, like about 20 other states, has a state Religious Freedom Restoration Act (RFRA) statute that requires government agencies to exempt religious objectors from generally applicable laws, unless denying the exemption is the least restrictive means of serving a compelling government interest.” This is certainly beyond my competence or knowledge as a biblical scholar, but Volokh mentions that such an exemption is what Kim Davis is seeking. He has updates about these exemptions which have allowed Kim Davis to be released from jail as long as her office, in some form or another, continues to issue marriage licenses for all who seek them under the applicable civil laws, which means both heterosexual and same-sex couples. “However,” Volokh writes, “whatever Davis thinks of the federal judge’s order, she has to comply with it or risk being jailed again (as of this update, she has just been released from jail), though she is of course free to continue appealing the order.”

So, perhaps, American civil law will allow her a way out of her religious predicament after all, but if it does not, her next act if she desires to “obey God rather than any human authority” (Acts 5:29) will be to follow the example of Peter and John – in general, obviously, not in particulars – who were flogged and then ordered “not to speak in the name of Jesus” (Acts 5:40). Nevertheless, “the apostles left the Sanhedrin, rejoicing because they had been counted worthy of suffering disgrace for the Name. Day after day, in the temple courts and from house to house, they never stopped teaching and proclaiming the good news that Jesus is the Christ” (Acts 5:41-42). They did not, that is, join the Sanhedrin – not that they could have done so – or attempt to change the order of the Sanhedrin, but focused on their religious vocation. As both the Gospels of Matthew and Luke say, “No one can serve two masters; for a slave will either hate the one and love the other, or be devoted to the one and despise the other. You cannot serve God and wealth” (Matt 6:24; cf. Lk 16:13). Sometimes conscience requires that if you cannot do your job you leave your job, regardless of the cost.

John W. Martens

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alan macdonald
8 years 7 months ago
If you look in your pocket or purse and look at a coin, every one of them says "In God WE Trust". Isn't that what Kim Davis is doing? Do you think she wants or seeks the aggravation her stance has put her in? Should we just abandon Christianity and let homosexualists rule the country? You make a nice argument Mr Martens but ultimately you cannot cede to secularism.
Bill Mazzella
8 years 7 months ago
Alan, right. Let your conscience and Kim Davis' tell everyone else what to do. Why don't you go into their bedrooms and arrest them for going against the law. It is not secularist. It is just rule of law. No one is forcing Kim Davis to marry a woman.
William Atkinson
8 years 7 months ago
Whether your president of United States or clerk in marriage office in state office, you take an OATH to uphold constitution, the Laws of your country and your state if your religion, when you took office or revised beliefs after taking office interfere with your carrying out your OATH, then you must resign and find work that does not interfere with your religion, faith, beliefs, especially when here in the land of freedom, rights, liberty, life, and pursuit of everybody's happiness. By the way the religion that this high paid clerk belongs to (ACC) defines divorce people (Kim has been married 4 times) as sinners and do not allow them to be members of their church. All in all, she has violated the precepts of her church, and the OATH of office, and if Gov Huckabee also can't live up to the OATH of office to be president of US, he also should not be candidate for that office, and if either break their OATH of office, like Huckabee said, go straight to jail, do not collect their pay for not doing their sworn duties.
Ellen Boegel
8 years 7 months ago
Excellent commentary on the differences between civil disobedience and usurpation of power. A person who uses her government position to impose her religious beliefs on the public violates the religious freedom of those she has sworn to serve and the First Amendment's prohibition against the establishment of a state religion. The constitution requires Ms. Davis to abide by the rule of law, but her choices are not as stark as suggested by the gospels of Matthew and Luke. She is free to permit the issuance of marriage licenses (and accept a paycheck from what she sees as an ungodly government) by day, and return to her status as humble citizen and vehemently protest and advocate for the abolishment of same-sex marriage by night (and on weekends).
William Rydberg
8 years 7 months ago
I personally am very skeptical of this interpretation of Scripture because I doubt that it would square with both the writings of the early the Fathers of the Church and the Development of Doctrine under the Holy Spirit in Christendom over the past 2 millennia. For I believe that the culture has been christianized beyond doubt and the seeds of the Gospel are present, we are not talking of pure pagan culture circa 80 CE. In my humble opinion, the position outlined above is subtle but amounts to cover for Catholic withdrawal from the public square. This POV is so persuasive and so distributed throughout Catholicism that even the German Episcopate under Cardinal Marx has unknowingly shown us what the logical conclusion will be... Take recent decisions by the German Episcopate to voluntarily remove policy and procedure protections acknowledged by the German High Courts concerning Catholic Moral Teachings as their right under German Law. Those familiar with recent developments there will understand since the topic is discussed widely (at least outside of Germany). I sometimes hate sounding "old school" but it's not only individuals who will be subject to Divine Judgement, but nations as well as others. To poorly quote the late Mother Theresa..."..We are required to be Faithful, not successful..."
J Cabaniss
8 years 7 months ago
I am struck by the argument that while the citizen is recognized to have a moral right to disobey laws he finds immoral, that moral right stops if he is a government official tasked with applying those laws. What an arbitrary distinction. I wonder how many people would castigate a CIA official who refused to engage in waterboarding. How can anyone believe we are justified in ignoring this set of laws but not that set? Either the moral right exists or it doesn't. Nor is the complaint any more reasonable that Ms. Davis has no right to impose her beliefs on others. She is imposing nothing at all. Gays can still get "married" in Kentucky with or without her help; her non-actions are virtually irrelevant. The opinion one has of Ms. Davis actions seems directly tied to the opinions one has about gay marriage. It is an understandable reaction, but it shouldn't be dressed up to look like anything else.

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