Written 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).
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 U.S. 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 to uphold 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)?
3. Whatever Happened to Acting Like Lincoln?
Isn’t Davis doing more or less what Robert George recommended in this post-Obergefell First Things symposium (quoted in full, bolding mine)?
How shall we respond to a lawless decision in which the Supreme Court by the barest of majorities usurps authority vested by the Constitution in the people and their elected representatives? By letting Abraham Lincoln be our guide. Faced with the Supreme Court’s Dred Scott decision, Lincoln declared the ruling to be illegitimate and vowed that he would treat it as such. He squarely faced Chief Justice Roger Brooke Taney’s claim to judicial supremacy and firmly rejected it. To accept it, he said, would be for the American people “to resign their government into the hands of that eminent tribunal.”
Today we are faced with the same challenge. Like the Great Emancipator, we must reject and resist an egregious act of judicial usurpation. We must, above all, tell the truth: Obergefell v. Hodges is an illegitimate decision. What Stanford Law School Dean John Ely said of Roe v. Wade applies with equal force to Obergefell: ‘It is not constitutional law and gives almost no sense of an obligation to try to be.’ What Justice Byron White said of Roe is also true of Obergefell: It is an act of ‘raw judicial power.’ The lawlessness of these decisions is evident in the fact that they lack any foundation or warrant in the text, logic, structure, or original understanding of the Constitution. The justices responsible for these rulings, whatever their good intentions, are substituting their own views of morality and sound public policy for those of the people and their elected representatives. They have set themselves up as superlegislators possessing a kind of plenary power to impose their judgments on the nation. What could be more unconstitutional—more anti-constitutional—than that?
The rule of law is not the rule of lawyers—even lawyers who are judges. Supreme Court justices are not infallible, nor are they immune from the all-too-human temptation to unlawfully seize power that has not been granted to them. Decisions such as Dred Scott, Roe v. Wade, and Obergefell amply demonstrate that. In thinking about how to respond to Obergefell, we must bear in mind that it is not only the institution of marriage that is at stake here—it is also the principle of self-government. And so we must make clear to those candidates for high offices who are seeking our votes, that our willingness to support them depends on their willingness to stand, as Abraham Lincoln stood, for the Constitution, and therefore against judicial decisions—about marriage or anything else—that threaten to place us, to quote Jefferson, ‘under the despotism of an oligarchy.’
4. Doesn’t This Response Legitimize Obergefell?
By condemning Davis’s refusal, are we not treating a lawless legal decision as though it were the rule of law? Does this not grant legitimacy to the decision?
5. Doesn’t This Incentivize Power Grabbing?
If the Left’s blatant power grabs will continue to be defended by conservatives under the guise of “rule of law,” are we not incentivizing them to keep doing it? Is that how this ride works: progressives giving the hand-basket a periodic push in the direction of hell, and conservatives ensuring that it never turns around (albeit, attempting to salvage our reputation with requisite grumbling)?
6. How Does the Rule of Law Exist Right Now?
In what sense do we presently live under “the rule of law”? Are we not truly living under the rule of Kennedy and the four lockstep liberals? How can we speak of the rule of law in light of the following: President Obama’s executive orders. Queen Hillary and the amazing, disappearing emails. No-knock raids on political opponents (with no elected officials in jail over it). Internal Revenue Service agents eating out the substance of law-abiding citizens and Lois Lerner still walking the streets. States who refuse to enforce federal drug laws. Sanctuary cities where federal immigration laws are adiaphora.
Completely apart from Kim Davis (who is, after all, simply trying to create sanctuary counties, where people who still know the difference between boys and girls can live in peace and harmony), in what sense are we presently living under the rule of law?
7. Should All Christians Resign?
Davis’s refusal is often framed as a decision of “conscience.” Setting aside for a minute whether the government should accommodate her conscience, as Christians, do we think her conscience should resist granting licenses to same-sex couples? As pastors and theologians, do we think that granting the licenses is a participation in an institutionalized lie, and therefore, if accommodations are not made, all Christian elected officials should simply resign? In other words, is this truly our Shadrach moment, our “pinch of incense to the emperor” moment?
8. What About the Next President?
If the next president is a Republican, can he (or she) order the U.S. Department of Justice to not prosecute government officials in Davis’s position? Or would this also assault “the rule of law”? And if the next president could suspend prosecutions in this way, how would that be any different from Davis’s actions in this case?
9. Is Civil Disobedience Completely Illegitimate?
Do you oppose all notions of interposition and resistance to tyranny by lesser magistrates? Or do you simply reject it in this case? Are there any cases where you think lesser government officials should resist the unjust and unconstitutional decrees of higher authorities (rather than simply complying with the decrees or resigning from office)?
10. What Is the Hill to Die On?
Some have said this is not the hill to die on. What, then, is the hill to die on? What would the Supreme Court have to decree before other elected officials should use their offices to get in the way? What would they have to decree that would make us all—bakers, florists, and county clerks—refuse, lock, stock, and barrel?
Regarding this question, Dreher has answered, “When they start trying to tell us how to run our own religious institutions — churches, schools, hospitals, and the like — and trying to close them or otherwise destroy them for refusing to accept LGBT ideology. This is a bright red line — and it’s a fight in which we might yet win meaningful victories, given the strong precedents in constitutional jurisprudence.”
But this simply underscores the importance of question seven. How will we have anyone left to fight if our elected officials resign to protect their consciences? And if you don’t want them to resign, but to instead issue marriage licenses, why is it okay for elected officials to offer a pinch of incense to the emperor, but not okay for the bakers and florists? And if we’ve established the precedent that we’re comfortable issuing the licenses despite our religious objections on this hill, then on what grounds will we fight the battle on that hill? Once we’ve grown used to retreating, how will we break the habit?
Or, to come at this question from another direction, if, as Dreher supposes, we’re entering an era where we have a de facto religious test for public office, why would we not choose to have the fight now, when there are still lawyers, judges, and politicians in positions of authority and influence? Why wait until the ranks have been thinned by the American Bar Association, or by lawsuits like the latest from Oregon? While I’m not military strategist, surrendering the high places seems to me to be a poor strategy in a cultural battle.
A Response to Kim Davis Critics
Now a few comments on various and sundry points made by Davis’s critics. My restatements of their arguments are italicized, followed by my response.
There’s no way Davis wins. Therefore, aren’t her efforts counterproductive?
Two thoughts. First, since when does the prospect of winning and losing determine our moral duties? The possible outcomes facing Shadrach and his friends said nothing about whether they should worship the image (Daniel 3:17).
Second, Davis’s impotence lies in her solitude. But what if she wasn’t alone? What if, instead of criticizing her, pastors and theologians were encouraging thousands of Christian elected officials to stay in office and refuse to participate in the Great Lie? What if, when some of them were removed from office or impeached, their successors ran on a platform of continuing the defiance? Lather. Rinse. Repeat. In other words, what if we encouraged thousands of leaders to follow Davis’s lead and George’s advice?
Let’s say we encourage more Kim Davises. Most people in this country won’t understand what we’re doing. They won’t see it as a pursuit of justice. They’ll just see bigoted Christians who are refusing to support “marriage equality.”
Again, two thoughts. First, part of the reason they don’t understand this kind of resistance is that we don’t understand this kind of resistance. Let’s get our own story straight and then we can start telling them about it.
Second, even if they still don’t understand, so what? George Wallace and Bull Connor didn’t regard the Freedom Riders as, you know, riding for freedom. The Babylonian tattle-tales didn’t recognize Daniel’s prayers as seeking the good of the city. But in both of those cases, God did. Perhaps we should be less concerned with what we can do to change the minds of others, and more concerned with how we can live faithfully so that God will act on our behalf?
Resist with Joy
Finally, a closing exhortation for my fellow Christians in these days. The author of the letter to the Hebrews commended the early Christians when they were unjustly treated because they “joyfully accepted the plundering of their property” (Hebrews 10:34). In our day, we are facing two challenges in relation to this biblical exhortation: some don’t want to call what’s happening “plunder;” and some don’t want to accept it with joy.
Some don’t want to insist on the other side’s lawlessness, and some simply want to grumble, fuss, and shriek about the other side’s lawlessness. The questions above were directed at the first group. We need to get straight on who the lawless ones are here. But in my judgment the latter issue is more important, partly because we see it so infrequently.
As we resist the petty tyrants of our day, as we go to jail for refusing to bow down and worship their image, as our property is plundered because we won’t bake cakes that celebrate the lie, we must do all of this with joy in our hearts and laughter in our bones. No scowling and spittle. No sulky tantrums. No angry fits about the injustice of it all. Such things are unbecoming and ineffectual. Besides that, they’re tacky.
The Scriptures are clear that we have “a better possession and an abiding one,” and therefore we can gladly let goods and kindred go. Thus, as we develop and implement our theology of resistance, we ought to be ready to accept the consequences of such resistance gladly, going on our way rejoicing because we’ve been counted worthy to suffer for the Name (Acts 5:41).
Joy is not optional. It’s essential. What’s more, deep joy in the midst of these troubled times is possible, because all authority in heaven and on earth has been given to Jesus, and his kingdom is forever.