On Friday, I posted a reply to a blog post by Peter Saunders in which he claimed that Kim Davis and Sabrina Hout shouldn’t be facing legal action for their choice to avoid involvement in gay marriage, as they were (according to Saunders) only exercising their freedom of conscience by so doing. I pointed out that freedom of conscience does not excuse discriminatory behaviour, which was what was going on here.
What I want to do now is to write more about the details of the two legal cases, since this whole claim that it boils down to ‘they shouldn’t have to violate their religious beliefs by doing X!’ is a considerable oversimplification. This post was meant to cover both cases, but it ended up being longer than I’d planned for, so I’ll make this one about Kim Davis and write about Hout in a separate post.
Kim Davis, for anyone who hasn’t already heard about her, is a Kentucky county clerk who underwent a conversion four years ago to Apostolic Christianity, a branch of Christianity that believes gay sex, and hence gay marriage, to be wrong. As of June 26th last year, this brought her beliefs into conflict with her job requirements; when the Supreme Court declared state laws against gay marriage to be unconstitutional and void, she found herself faced with the requirement to issue marriage licences to gay as well as straight couples.
Although I find Kim Davis’s homophobia and intolerant form of religion repugnant, I do, believe it or not, have some sympathy for the dilemma she then found herself in; her beliefs, as ghastly as they are, are her beliefs, and it is not easy to find yourself in a situation where you are faced with a choice between violating your beliefs and giving up something else that means a great deal to you. And there is no doubt that Davis’s job means a great deal to her; she was actually the successor to her mother, who held the post for 37 years, during 19 of which Davis worked under her as her deputy, and it was clearly a very moving moment for Davis when she herself successfully ran for the post and was elected in November 2014. It must have been a great blow to her when, less than a year later, she found that the job to which she was so deeply committed now contained a requirement to do something that she believed to be wrong.
Nevertheless, however hard the choice between her beliefs and her job must have been for Davis, as of June 26th that was the choice she was faced with. Regardless of what any of us might think of her stance on gay marriage, I can’t see any way in which it can be ethically justifiable to continue taking taxpayers’ money for a job in the knowledge that you are going to refuse to carry out the full requirements of the job. Davis did indeed have the absolute right to avoid signing licences for marriages for gay couples – by resigning from the job that now required her to do this.
Davis did not do this, nor did she sign the marriage licences. Any marriage licences. Following the Obergefell ruling of the Supreme Court, she stopped signing marriage licences altogether, claiming that this was to avoid discrimination (I’m not clear on the logic of an “if I refuse to sign any marriage licences while making it quite clear that this is because of my opposition to gay marriage” approach being non-discriminatory, but this is what she claimed). The ACLU therefore filed a class action suit against Davis on behalf of four of the couples (two gay, two straight) who had been denied licences.
On August 12th, Judge Bunning (who, by the way, is a committed and practicing Christian himself, which throws something of a spanner in the “this is all just discrimination against Christians for their religion!” argument) issued his official ruling. In twenty-eight pages of analysis of the issues, he concluded that, yes, the taxpaying residents of Rowan County were entitled to expect their elected clerk to perform the services her job required her to perform, and no, Kim Davis’s religious beliefs did not get her out of the obligations of her job as Rowan County Clerk. In arguing the latter, he quoted from a previous case, Cantwell vs. Connecticut; the full passage from which he quoted runs as follows:
The constitutional inhibition of legislation on the subject of religion has a double aspect. On the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship. Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen form of religion. Thus, the Amendment embraces two concepts — freedom to believe and freedom to act. The first is absolute, but, in the nature of things, the second cannot be.
(Cantwell vs. Connecticut pg 301 US 303 – 4, quoted in part by Bunning)
Or, to put it more simply; your freedom of religion in the USA covers an absolute right to believe whatever you want to, but doesn’t give you a blanket excuse to act however you want to.
(By the way, the Caldwell vs. Connecticut ruling involved two Jehovah’s Witnesses who were soliciting money door-to-door without a permit and who were playing recordings to Roman Catholics that insulted their religion and offended them, because they believed both of these actions to be acceptable in light of their own religious beliefs. Once you start using ‘Because belief!’ as an excuse for any action regardless of its potential harm, it opens the door to a hell of a lot of dodgy stuff.)
When Davis ended up back in front of Judge Bunning again a few weeks later for her continued refusal to issue licences, he actually offered her another solution; she could let the deputy clerks in the office issue licences without having to be involved herself, and he would allow this. She refused. She was, she made clear, going to prevent other clerks in the office from issuing licences as well.
Now, apart from the obvious fact that this meant that she would be continuing to prevent an important public service from being carried out while at the same time taking public money to perform the public service which she was preventing, this seems to me to raise another important point: What about the deputy clerks’ right to freedom of conscience?
From what I’ve been able to glean, it seems that this is not actually an issue; five of the clerks are also against issuing licences (though four of those five have reluctantly agreed to do so in accordance with the judge’s order) and one of them (who is now signing all the licences) appears not to be too bothered either way. But let’s suppose that one of Davis’s deputies had a strong anti-discrimination stance and believed that issuing licences was the right thing to do. Would Davis respect that clerk’s freedom of conscience? Or would she still be insisting that he or she should refrain from issuing licences in accordance with her religious beliefs?
It’s worth, at this point, noting something that Davis stated in an interview when talking about why she did not, in fact, choose to leave the job she couldn’t bring herself to do:
“I would have to either make a decision to stand or I would have to buckle down and leave,” she said, pondering her choices. “And if I left, resigned or chose to retire, I would have no voice for God’s word.”
So, in fact, this goes way beyond whether she herself should or shouldn’t have to sign marriage licences; She also wants to use her job as a public official to promote her own particular religious views. (In blatant violation, I might add, of her country’s overriding principle of ‘separation of church and state’.)
And that’s the ironic twist in the story. While Dr Saunders and many others see this as an issue of religious freedom, it appears that to Kim Davis it’s actually the reverse. Kim Davis does not, from what I can see, want religious freedom. What she wants is for people to have to follow her religion. And her actions are aimed at doing what she can to bring that about, regardless of how others feel about the matter or how it affects them.
So that saga (plus the fact that she’s an elected official and can’t simply be fired, which is what would happen to almost anyone else who was blatantly refusing either to do their job themselves or delegate it to someone who could) is why Kim Davis ultimately ended up spending five days in jail for contempt of court. It’s not because she holds the beliefs she does. It’s because she refused to do her job or let others do theirs, and abused her position in order to push her beliefs on others in a way that was harmful and discriminatory.