The newest volley in the war against same-sex marriage is being fired by County Clerk
Kim Davis of Roland County, Kentucky. It's been in the news, so everyone is aware of what she is doing: denying marriage licenses to same-sex applicants because...she doesn't want to issue them. When asked why she wouldn't issue a license to a homosexual couple, that's what she actually said; "I don't want to." She elaborated by attributing her aversion to God and His law, but her first answer was, "I don't want to." The U.S. Supreme Court has made it clear that we are all the same under the law, and when Davis went to court to try to get an exemption from the law that would allow her to refuse to comply because of her right to religious freedom, she lost and is now under court order to issue licenses in accord with the law. Of course, this whole matter has become the fodder for a continuing discussion of the purported tension between the rights of homosexuals and transgender persons on the one hand and the religious piety of the sanctimonious minority, but in this case, not even that "tension" exists. It is the law in Kentucky that same-sex marriage is legal and that those same-sex couples who wish to marry are entitled to licenses so that they can do so. Thus, in Davis's case, the issue isn't whether she should be able to exercise her religious freedom. No one is asking her to marry a member of the same sex or even endorse the practice. She is just being asked to do her ministerial duty, that is, a duty that is not discretionary but is rather required under the law. Let me put it another way. Davis isn't asserting her right to practice her religion. She is claiming the right to prevent others from exercising their rights under the law. The two are very different things.
The sticking point lately has been the point at which the old concept of "public accommodation" begins to apply to cases of gender discrimination the way it does in cases of race discrimination, and the comparison seems apt to me. The basic premise that we are all created equal under the law doesn't necessarily require each of us to regard all others as equal in our own eyes. But there is a difference between the celebrated cases of denial of pizza, wedding cakes and floral arrangements to people because they are homosexuals and denying the privileges conferred on all of us by the law to them. I believe that is why the judge in Davis's case issued a court order compelling her to comply with Kentucky law and issue marriage licenses to same-sex applicants. It wasn't an aversion to her religion inspired intransigency; it was an aversion to a county clerk deciding what the law of the land is when the law of the land is perfectly clear, and it isn't what she wants it to be. As it turns out, she is elected and thus cannot be fired, though she certainly could be impeached...and should be if she doesn't do her professional, statutory and legal duty, though the consensus is that in Kentucky, that will never happen. And thus, the people of Kentucky who want the law to be obeyed--and they seem to be in the majority, though perhaps not overwhelmingly--will be thwarted by not just a minority of the population but a single zealot who claims the impunity of religious conviction and afflatus.
This may be hyperbolic, but bear with me. Let's say that a county clerk thinks that interracial marriage is a violation of God's law. If Kim Davis is permitted to prevail on the same-sex marriage, why shouldn't the proponent of same-race marriage prevail against those who think marriage across racial lines is acceptable? Of course, that could never happen today, so the analogy is probably moot and therefore unpersuasive. But suppose a clerk somewhere believes that marriage of any kind is against God's law. Suppose that he wants to deny all marriage licenses because he thinks that God wants us to be fruitful and multiply...and he doesn't care how we do it. The Bible doesn't mention marriage as far as I know, so that idea isn't as far-fetched as it seems at first blush, which begs the question of what makes Kim Davis different from anyone who thinks that the law is wrong...any law for any reason. What makes Kim Davis different from the posse comitatus types who think they shouldn't have to pay income taxes or obey federal law because it infringes their state rights and thus their freedom. Do they have a point, and are we all therefore doomed to submit to their form of tyranny? What about a case in which a county clerk thinks that Jews are heretics and thus not to be tolerated. Could that clerk deny marriage licenses to Jews, or could a police chief who harbors such prejudices deny the protection of the law to Jews? Or to Catholics for that matter. Or what if he just thought you were a religious anathema?
You can see that Kim Davis's position that she is exempt from performing her legal duty is the beginning of a slippery slope, and the world has been at that beginning before. Her kind of religious zeal isn't just innocent true-belief. It is the beginning of a hard fall that we would all take--Jews, Evangelicals, blacks and whites--if she were to prevail. I hope the people of Kentucky keep that in mind when they decide what to do with Kim Davis.
Your friend,
Mike
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