Government Official Jailed for the “Right” to Discriminate Against Citizens Based on Official’s Religion

Photo: Booking Photo from the Carter County Detention Center

Within the past few days, Rowan County, Kentucky has become ground zero of a nationwide attempt to override the U.S. Supreme Court’s decision earlier in June that upheld the national right to same-sex marriage. It is the flashpoint of a culture war that threatens to take us away from a Constitutional democracy and toward an American theocracy.

In response to the Court’s ruling in Obergefell, Kim Davis, who ran as a Democrat and elected last year as the clerk of the 23,000 resident county, ordered her office not to issue any marriage licenses at all in order to avoid providing licenses to same-sex couples. Same-sex marriage violates Davis’ religious beliefs.

After Davis refused to provide licenses, her office was sued by Rowan County residents, including two same-sex couples and two heterosexual couples who demanded the right to get married.  U.S. District Judge David Bunning ordered Davis to provide the licenses and she refused, appealing the ruling to the U.S. Supreme Court. Without comment, the high court refused a hearing on the matter and the case went back to Judge Bunning who offered not to jail Davis if she would accept an accommodation of allowing her deputy clerks to issue the licenses without her interference.  Davis refused to agree to these terms and Judge Bunning jailed Davis for contempt of court.

What Davis hopes to achieve is not merely accommodation for her religious beliefs – she wants the power to control marriage within the county in a manner consistent with her religious views. With Davis incarcerated, county clerk deputies began issuing marriage licenses to both heterosexual and same-sex couples much to the consternation of her attorney Mat Staver, who said the licenses are “not worth the paper they are written on” because Davis didn’t approve them.

Because the county clerk is an elected position, Davis cannot simply be fired. She would need to lose an election or be impeached by the state legislature, and neither scenario is likely given the current political climate.

While there have been a number of cases involving small wedding-related business owners, such as photographers and cake bakers, who refused to provide services for same-sex weddings, the Davis case is the first time that a public official has been jailed when they refused to allow their government office to participate in licensing same-sex weddings.

During rallies and discussions over the weekend, Davis supporters continued to argue that Judge Bunning had illegitimately stripped Davis of her “religious liberty” when she refused to follow the law in her capacity as a government official.

Practically, this is what Davis’ argument would mean:

Let’s say a county zoning official who belongs to “the church of the spaghetti noodle” or some other non-Christian religion refuses to provide a Baptist church with a building permit because it would violate his religious beliefs. Would an appellate verdict, maybe even a Supreme Court decision, favoring Kim Davis’ right to refuse same-sex marriage licenses within her county provide a precedent that would protect the right to deny the permit? It would.

Davis may be well-meaning in her view, but she is seeking power by working to create a precedent that would make her the final arbiter of who gets to get married in her county. What Davis wants to do is engage in religious oppression against those who do not share her religious beliefs, not preserve what her supporters erroneously call “religious liberty.” In short, Rowan County could become a “Christian” caliphate if Davis were able to work enough of her religious beliefs into the law.In short, Rowan County could become a “Christian” caliphate if Davis were able to work enough of her religious beliefs into the law. This is the type of local politics that allowed Jim Crow laws to exist for decades in the South. [pullquote align=”right” cite=”” link=”” color=”” class=”” size=””]This is the type of local politics that allowed Jim Crow laws to exist for decades in the South.[/pullquote]

To put it another way, if Kim Davis were to “win”, her case would give every other government official the right to do the same thing, which is to use the power of their political positions to eliminate access to rights simply because it would violate the beliefs of the official.

Davis has a right to refuse to violate her conscience, but she was offered a  reasonable accommodation by the judge when he said her deputies could sign the licenses and she would not have to do so. Davis refused to allow others to sign the licenses, and as such, the court has no option but to find her in contempt and either jail her or place U.S. Marshalls at the doors of her office to prevent her from entering.

Davis and her attorney are arguing that she alone has the right to say who gets a marriage license in her county. This kind of centralized power is unwarranted in a constitutional democracy, and would be frightening to Davis’ most ardent supporters if these kinds of decisions belonged to somebody with whom they disagreed on matters of faith.

Gabriel Arana, in an editorial in the Huffington Post, made a very astute observation.  While Davis’ attorney has compared her with a list of famous conscientious objectors, in reality, “Davis is more like the bus driver than Rosa Parks.”  Kim Davis, in her role of a state agent, is more “like former Alabama Gov. George Wallace, who famously stood in the doors at the University of Alabama to try to stop racial integration from taking place.”

Given that the Supreme Court turned down Davis’ appeal, and Davis has continued to refuse to grant the licenses, Davis will remain in the headlines as her supporters claim her as a so-called “prisoner of conscience.”

Certainly there are many religious beliefs that public officers may hold personally but do not attempt to impose on the public. For instance, Seventh-day Adventists and Orthodox Jews don’t attempt to enforce laws requiring abstinence from work between sunset Friday and sunset Saturday. They will, of course, seek accommodation if they are asked to work during that time, but they don’t ask that their governments shut down in honor of their observance.

The United States Constitution, and its precursor document, the Declaration of Independence, provided an odd-sounding, but very palpable “right to be wrong.” It recognized that there are things that are between the individual and God and with which the state has no right to interfere.

Before the formation of the United States, churches and government were not separate. Unlike the modern idyllic concept that this time was an era of peace, security, and morality, it was quite the opposite. Not unlike modern governments that attempt to merge religion with government, the churches found that not everybody who lived in their nations wanted to follow their religious codes. So churches asked governments to punish people who dissented from the religious laws or didn’t obey them properly.

This led to a period of significant persecution and some estimate that millions of people were either killed or imprisoned simply because they were perceived as breaking the religious laws.

That is not a time in the far distant past and is in fact contemporary as there are many places in the world with theocratic forms of government. It is not hard to envision that under the right circumstances, perhaps even fomenting as the result of this case, the type of religious oppression that this nation was founded to avoid could happen again if some of the heated rhetoric surrounding the Davis case persists.

America is protected by the free exercise and establishment clauses of the First Amendment, passed through to the states by virtue of the Fourteenth Amendment, but these are precisely the legal texts that are under the most focused attack by well-meaning Christians who feel that their beliefs place them above the law and give them the right to dictate the actions of others. They believe that laws must be made to accommodate their right to impose their beliefs on others. This is what is predicted in the book, The Great Controversy, written in 1884 by Ellen G. White.

“The founders of the nation wisely sought to guard against the employment of secular power on the part of the church, with its inevitable result– intolerance and persecution. The Constitution provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” and that “no religious test shall ever be required as a qualification to any office of public trust under the United States.” Only in flagrant violation of these safeguards to the nation’s liberty, can any religious observance be enforced by civil authority,” pg 442.

White predicts a coming together of Protestant Churches in an effort to halt the “state of religious declension” and “ungodliness.”  This combination to attack societal immorality will lead to efforts to waive doctrinal differences and secure religious uniformity.

She writes, “Charles Beecher, in a sermon in the year 1846, declared that the ministry of ‘the evangelical Protestant denominations’ is ‘not only formed all the way up under a tremendous pressure of merely human fear, but they live, and move, and breathe in a state of things radically corrupt, and appealing every hour to every baser element of their nature to hush up the truth, and bow the knee to the power of apostasy. Was not this the way things went with Rome? Are we not living her life over again? And what do we see just ahead? Another general council! A world’s convention! Evangelical alliance, and universal creed!’–Sermon on ‘The Bible a Sufficient Creed,’ delivered at Fort Wayne, Indiana, Feb. 22, 1846. When this shall be gained, then, in the effort to secure complete uniformity, it will be only a step to the resort to force.

“When the leading churches of the United States, uniting upon such points of doctrine as are held by them in common, shall influence the state to enforce their decrees and to sustain their institutions, then Protestant America will have formed an image of the Roman hierarchy, and the infliction of civil penalties upon dissenters will inevitably result.” pp. 444-445.

The Great Controversy scenario may seem a long way off, if not impossible, when the religious community that sees itself losing the “culture wars” but the more society changes, the more it is clear that the pendulum which has swung to the left in the last two to three years may just as easily swing to the right with religious forces in control. The sentiments expressed by Charles Beecher in 1846 are still advocated today.

If we have learned anything from watching the shift from 2008’s Proposition 8 banning same-sex marriage in California to nationwide legalization in 2015, it is that massive, almost unimaginable, changes can happen extremely quickly.
Last week, Mike Huckabee, who is a current candidate for President, a fact easy to forget given the polling figures, and a former evangelical pastor, claimed the Supreme Court had no jurisdiction over marriage and that “Government is not God. No man – and certainly no unelected lawyer – has the right to redefine the laws of nature or of nature’s God.”

Although Christianity has often asserted, especially since the birth of the Moral Majority in the early 1980s, that it has some kind of claim to the politics of the world, this is not a scriptural reality. I remember that I used to get my own inspiration from Ken Nugent. When Jesus was led before Pilate by the religious leaders of the day on trumped up charges of trying to overthrow the Roman government, Jesus told him, “My kingdom is not of this world. If it were, my servants would fight to prevent my arrest by the Jewish leaders. But now my kingdom is from another place.”  John 18:36 (NIV).

Despite the claims that conservative religion has fallen victim to the left, the scenario of a return to the unity of church and state that defined the Middle Ages seems increasingy plausible as Christians adopt the rhetoric of political power, claiming that the government has gone too far away from God and that the time has come to severely limit, or even do away with, the freedoms granted to citizens by the Constitution, the Courts, and the democratic system of government. What we are seeing in Rowan County, Kentucky may be just the beginning.

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