What do we do when the demands of civil law conflict with divine commands?
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:
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