Why secular liberals can't tolerate Kim Davis

By Phil Lawler ( bio - articles - email ) | Sep 04, 2015

Granted, Kim Davis is not a martyr. She’s still alive, among other things.

Granted, she could have resigned her position rather than risking a jail sentence. No one has the right to hold public office, and if it turns out that in the Brave New America, believing Christians are barred from serving as country clerks—well, the Church has endured worse persecutions.

Granted, by refusing to issue marriage licenses to any couples, Davis may have deprived some Kentucky residents of their legitimate rights. At least she may have postponed the vindication of those rights, and justice delayed is justice denied.

Granted, finally, given the current alignment of forces in the American political arena, Kim Davis is likely to lose this battle.

Nevertheless she deserves our support.

Davis could have backed away from this confrontation—as, I’m sure, hundreds of other Christian clerks have done. She could have let someone else issue marriage licenses to homosexual couples. She could have adopted the position taken by so many public officials (and, sad to say, by so many Church leaders) and declared that legal recognition of same-sex marriage is now the “law of the land,” and we all must accept it. Let’s applaud her for taking a stand, when others, in stronger positions, sought the safety of the sidelines.

We are taught that an unjust law is no law at all, that we are not obligated to honor it. Although I might disagree with Kim Davis on many things—including, by the way, her religious beliefs-- I share her conviction that the law embodied in the Obergefell decision is an unjust law. But I, personally, can withhold my recognition of same-sex marriage. She cannot. In her position as a public official, she is now asked to certify that two people are eligible to marry, when she knows that in fact they are not.

In sending Davis to jail, Judge David Bunning made much of the fact that she had sworn to uphold the law. “An oath is an oath,” he said. But she took an oath to uphold the law, and she is upholding the law. If she certified that two men or two women are eligible to marry, that would be bearing false testimony.

The debate here, you see, touches on fundamental questions about law, justice, nature, and reality. An unjust law has no binding force. A law that violates the laws of nature is an unjust law. A law that contradicts reality is an absurdity.

Unfortunately the American political system has deteriorated to a point at which absurdities are embraced, unnatural acts are celebrated, and so injustice is widespread. Our proud political heritage has been debased; the legitimacy of the American regime is severely compromised.

How can we restore the legitimacy of our republic? I wish I had a simple answer. But I know that to resist further injustice, we must not give our assent to unjust laws. Kim Davis refused to give her assent, and for that I salute her.

Believing Christians obviously lack the clout that would be necessary for a quick restoration of sanity in the American political system. We have been losing political battles for years now, and it is not easy to discern a winning political strategy. Many intelligent observers argue the Kim Davis is fighting another losing battle. Perhaps so. But perhaps it would be better to fight now, even against long odds, than to wait while the odds grow longer.

My friend Rod Dreher questions whether cultural conservatives should enlist in the battle alongside Kim Davis, and concludes (uneasily, I think) that they should not. He goes on:

So, if Kim Davis isn’t a hill to die on, what is? It’s a fair question. Broadly speaking, my answer is this: 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.

To which I respond:

1. They have already told us how to run our own religious institutions: the adoption agencies, the day-care centers, the schools, the hospitals, the mental-health clinics. These institutions are already facing pressure to conform or shut down—if they have not done one or the other already.
2. Why should religious institutions have protection that is denied to religious individuals? Isn’t my family—every Christian family-- a religious institution?
3. Kim Davis and other Christians can step down from their public positions, and maintain their own integrity. But their departure from the scene will make it far less likely for other Christians to rally the forces needed to win future battles.
4. Even if we do conclude that it is imprudent to risk dying on this hill, it is an injustice to leave our comrades there to die unprotected.
5. In the political world, sometimes we decide, for prudential reasons, that we can’t afford to support people for whom we feel sympathy. In those cases, it’s usually best to remain silent, rather than to make public statements that could be turned against our friends.

Finally, when weighing how much support we should give to an isolated (and now imprisoned) county clerk in Kentucky, we should take note of the importance that secular liberals attach to this case. R.R. Reno observes:

So why the furor? Because her refusal poses a symbolic threat to “marriage equality” and its claim to realize the high ideals of justice. One word of dissent, one act of conscience, disturbs the serene confidence of progressives that they have a monopoly on all that is right and good.

The Heritage Foundation has furnished a helpful list of other American public officials who have refused to carry out their legal duties because, in various ways, they wanted to advance the cause of homosexual rights. None of them were jailed; none, in fact, suffered any punishment at all.

The American legal system has usually treated conscientious objectors with great delicacy, honoring those who take a stand on principle. Not so with Kim Davis. The court had imposed a draconian punishment in her case, and the pundits have applauded. Because to acknowledge any merit in her case is to call into question the legitimacy of the Obergefell decision. Which is precisely why we should press her cause.