The news in Kentucky took a rather remarkable turn this week after Rowan County clerk Kim Davis made a last-ditch appeal to the U.S. Supreme Court to shield her from a federal court order compelling her to issue marriage licenses to same-sex couples.
The Supreme Court turned her down Monday. Yet when David Moore and David Ermold showed up on Tuesday morning to collect their marriage license, Davis still refused.
"We are not issuing marriage licenses today," said Davis.
"Under whose authority are you not issuing marriage licenses today?" asked Moore, one of the two men seeking a license.
Turning to look Moore dead in the eye, Kim Davis responded, "Under God's authority."
She didn't look like she was kidding, though I don't pretend to know what's in her heart. After the young couple along with their entourage of cameras and supporters refused to leave, Davis finally walked away from the counter and back into her office. Chants of "Do your job!" followed her as she shut the door.
"God’s authority" apparently wasn't enough to sway federal judge David Bunning, who held Davis in contempt of court Thursday and ordered her jailed.
Davis is an extreme outlier—one of little more than a dozen county clerks nationwide concentrated in two states—Alabama and Kentucky—who continue to refuse to issue licenses due to their religious objections to same-sex marriage, according to Freedom to Marry. That’s pretty remarkable when you consider that same-sex marriages weren’t being performed in 14 states (including Alabama, despite a federal court order) when the Supreme Court issued its June decision.
But regardless of how quickly those remaining clerks fall in line—and they will eventually, as the Rowan County clerks did Friday—the episode crystalizes the discussion that we are re-engaging in this country. In this case, it was a "Because Religion v. Do Your Job" debate, but more broadly it’s a question of "God’s Authority v. The Rule of Law." Essentially, Christian conservatives want to add an "opt out" feature to the rule of law now that they don’t agree with it.
Head below the fold for some reflections on "special rights."
What’s exceptional about that is, not so long ago, it was social conservatives who accused gays of wanting "special rights" in order to marry, to keep their jobs, and to have any number of basic legal benefits and protections that would allow LGBT Americans to live free from discrimination, according to the internal guidance that lay in their hearts.
But gays never sought to skirt the rule of law, they sought to be included in it—through the courts and state legislatures and Congress, straight up to the president. LGBT Americans petitioned the public and their public servants to change the laws so that their internal guidance on matters of love would be both legal and legally protected. And they won that debate—at least in so far as marriage equality is concerned.
Now that they are indeed recognized by the law and constitutionally covered in matters of marriage, social conservatives want a special exception to the law. They are answering, they say, to their own internal guidance, to the dictates of a higher power as they know it to be in their heart.
But if Christians who have taken an oath of office to execute the law are allowed to ignore a constitutionally protected right based on their objections to it, what’s next?
As one Daily Kos commenter pointed out: What if Kim Davis were Muslim and refused to issue licenses to women who don't cover their head? Or a Jehovah's Witness who wouldn't issue licenses to couples who believe in the Trinity? Or an atheist who refuses to issue licenses to people wearing a crucifix?
Soon what we have is a system of anarchy. That’s exactly the concern that Judge David Bunning expressed in his Thursday ruling.
“The court cannot condone the willful disobedience of its lawfully issued order,” Judge Bunning said in holding Ms. Davis in contempt. “If you give people the opportunity to choose which orders they follow, that’s what potentially causes problems.”
But somehow I really doubt that Christians are anarchists. Instead, they are looking for an exclusive carve-out. As Lambda Legal legal director Jon Davidson noted on Facebook (and gave me permission to repost):
"I have to wonder: just how many of those supporting Kentucky clerk Kim Davis's refusal to issue marriage licenses based on her religious objection to same-sex couples marrying would support a Quaker government official who refused to issue them gun permits based on a religious commitment to pacifism?"
Not very many, I suspect.
In this instance, as in many, social conservatives are hunting for a certain Christian exceptionalism. But they quite simply cannot have it if they want to continue living in and benefiting from a civil society in which a diverse group of people coexist and hopefully thrive while brushing elbows with a lot of people who do not share their heartfelt beliefs.
If conservative Christians crave more than just their constitutional right to practice their beliefs privately—if they want their views to prevail in the public square—then let them petition the courts and lawmakers and the public just as LGBT Americans have done for decades on end.
Conservative Christians are not exceptional to the rule of law even if they believe they are in the eyes of God.