By Joe Rigney
There’s much talk of late about Kim Davis, the Kentucky county clerk who was jailed for refusing to issue marriage licenses to gay couples. She actually stopped issuing all marriage licenses, to avoid the charge of discrimination. She’s now out of jail, although it’s possible she’ll be sent back.
Among those who are sympathetic to her plight and the religious-liberty implications of the case, many (if not most) still think her decision to refuse to issue licenses was wrong.
For example, Russell Moore and Andrew Walker carefully distinguish between private actors (like bakers and florists) and agents of the state. The former should be allowed to refuse participation in a gay wedding, while the latter, when faced with the prospect of violating their sincere religious beliefs, should seek accommodation from the state, and, failing that, should resign. Others who agree with this principle include Eric Teetsel and Rod Dreher (Dreher mentions others in his post).
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For all of these commentators, Davis’s refusal to issue the licenses is a radical move that threatens the rule of law and our fundamental constitutional order. Conservatives, they argue, rightly object when government officials refuse to perform their duties (see here and here). Therefore, we ought not join them in similar lawlessness. (Breakpoint has collected a bunch of additional reactions here.)
I respect many of the men making these arguments. Some of them are good friends. But I have some questions about this framing of the issue.
1. Did You Consider if Kim Davis Isn’t the Law Breaker?
Who has violated the rule of law here? Is it Davis or the Supreme Court? If, as many conservatives argue, Obergefell v. Hodges is a legal abomination, and there is no right to same-sex “marriage” in the Constitution, isn’t Davis actually seeking touphold the constitutional order, the one that we wrote down so we wouldn’t lose it (as opposed to the one that’s rattling around in Anthony Kennedy’s head, which, like all marbles, tends to get lost rather easily)?
2. Is Kim Davis Required to Endorse Lies?
When Davis promised to fulfill her duties, did those duties include “tell lies about the fundamental institutions of society”? If that duty has been added in a blatant power grab by the judiciary, why does she have to go along? Why can’t she continue to fulfill the duties she promised to do (which, I think, incidentally, would mean that she should issue licenses to eligible heterosexual couples)…
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