Prelude
The Hermit Philosopher has been playing
bridge and minding his own business lately, but recent events bring him back to
the keyboard. Let’s start with a disclaimer: this is not a fulmination against religion. The HP recognizes and admires
the benevolent work done every day by people of faith all over the world. They are
exemplars of good will and service to others, and we applaud them and the
religions they believe in.
Comma, but …
Having said that, when bigotry
comes to America it often speaks in religious terms and carries a cross.
Case in point: the county clerk
in central Kentucky who refused to follow the law of the land and her own
governor’s orders to issue marriage licenses to certain eligible couples. The
clerk, Kim Davis, claimed that she should be excused from doing her sworn duty
because of a religious objection to same-sex marriage. In court papers she
claimed that her Apostolic Christian faith forbade her to affix
her name to a document endorsing the view that gay marriages are authentic.
“This searing act of validation would forever echo in her conscience,” her
lawyers argued.
Gimme a break! This red-state cretin – an elected official whose salary
is paid by the taxpayers of Kentucky – thinks she can impose her extreme beliefs
on others. The courts have disagreed and have ordered her to comply: “It cannot
be defensibly argued that the holder of the Rowan County clerk’s office … may
decline to act in conformity with the United States Constitution,” wrote a
unanimous U.S. Court of Appeals, adding “there is thus little or no likelihood
that the clerk in her official capacity will prevail on appeal [to the U.S. Supreme
Court].”
True enough, she did not win her appeal. On August 31 the Supreme Court
let stand the lower court’s ruling, and a few days later the trial court judge
threw her butt in jail for contempt. Her lawyer is quoted as saying she “has
been incarcerated for having the belief of conscience that marriage is the
union of one man and one woman.”
Baloney! She’s not in jail for her belief; she’s
in jail because she refused a lawful court order to do her job. And she will
remain there indefinitely until she agrees to comply with the law. In the
meantime, her deputy clerks have begun to issue marriage licenses to all
comers.
[By the way, as an elected official Mrs. Davis can't simply be fired, she would have to be impeached.]
The First and Fourteenth Amendments
Church/state law is a complicated realm of jurisprudence and admittedly
the HP is not a constitutional scholar, but he does know a bit more about it
than Mrs. Davis and her ilk. For those who need a refresher, the First Amendment
(ratified in 1791) states in relevant part, “Congress shall make no law
respecting an establishment of religion, or prohibiting the free exercise
thereof….” The Fourteenth Amendment (1868) applies the same principles to the
states. So when read together the two amendments mean that neither Congress nor a state can make a law respecting an establishment
of religion, or prohibiting the free exercise of religion.
After two and a quarter centuries of experience it is well known that the
“Establishment Clause” refers to the separation
of church and state – the principle that there are realms of individual
conscience that no government should be allowed to regulate. The second part –
the “Free Exercise Clause” – means Mrs. Davis is free to believe any damn fool
thing she wants to believe, but she must understand that there’s a dichotomy
between belief and action.
None of us is exempt from laws of general applicability just because we
say we believe something contrary. Were Ms. Davis a Mormon who believed in
polygamy, fine; but she would not be free to practice that belief. (This has been the law for 137 years.) Were
she a Hindu, she could not let her sacred cows disrupt traffic in downtown
Louisville. If she believed in some canine deity, she would still have to obey
the leash laws.
Furthermore, elected offices like the one Mrs. Davis holds “are created by the state, and they exist and act only
under authority delegated by the state.” [Ky. Legis. Research Comm’n., Informational Bulletin No. 114 at p. 2 (2014).]
Therefore Mrs. Davis’s actions are state actions and the state must stay neutral
on matters of religion. It can’t create a state religion; it can’t prefer one
religion over another; and it can’t prefer a religious person’s beliefs to
those of nonbelievers. Ms. Davis, an
agent of the State of Kentucky, must perform her secular duties regardless
of her personal beliefs. She cannot pick and choose which laws she will follow
or which services she will provide.
As the trial court judge said in ordering her to jail, “Mrs. Davis took
an oath, and oaths mean things.” He added that he too has “genuinely held religious
beliefs,” but he took an oath of office to uphold the law. “If you give people
the opportunity to choose which orders they follow, that’s what causes problems,”
he said.
Right! To which I would add – those “problems” are called anarchy.
Selective Morality
Apparently Mrs. Davis’s Apostolic Christian faith causes her to single
out only gays and lesbians for her moralizing. But the Bible condemns a lot of things,
and one might wonder whether she oughtn’t discriminate against other “sinners”
too. Should she refuse to serve people who work on the Sabbath? What about those
who eat pork or shrimp? Does she condemn people who have committed adultery or been
divorced? (As to these last two points, she obviously does not: Mrs. Davis is on her
fourth marriage and according to court filings has had two children out of
wedlock. The expression “do as I say, not as I do” comes to mind.)
There’s a term for selective decision-making like that of Mrs. Davis.
It’s called class-based discrimination
– the treatment of a person based not on individual merit but on the group,
class or category to which s/he belongs. Government may not engage in
class-based discrimination unless there is a truly compelling interest to do so.
And the peculiar tenets of a minority religious sect do not amount to a
compelling interest.
There’s another term for Mrs. Davis’s actions. That term is bigotry – extreme intolerance of any
creed, belief, or opinion that differs from one’s own. Mrs. Davis and her
followers are free to hold their bigoted beliefs in private, but they are not
permitted to turn them into the official actions of the State of Kentucky.
There are Larger Issues
Regardless of how this picayune drama plays out, there are more ominous
clouds on the horizon. They are the dust storms kicked up by right-wing pundits
and opportunistic politicians who pander to the masses.
Within hours of Davis’s imprisonment, some Republican presidential
candidates declared their support for her. Sen. Ted Cruz, for example, said “Today,
judicial lawlessness crossed into judicial tyranny.” (Hokum!) Mike Huckabee
called the case the “criminalization of Christianity.” (Nonsense!) And Rand
Paul said “it’s absurd to put someone in jail for exercising their religious
liberty.” (Claptrap! She’s not in jail for her religious beliefs; she’s in jail
because she refused to follow a lawful court order.)
As moronic as those comments are, it’s dispiriting to think that one of
these guys – or someone with similar views – might one day be asked to take the
oath of office as President. Would he swear to “preserve, protect, and defend
the Constitution of the United States, but only if I agree with it”?
More depressing is the thought that Kim Davis will probably be regarded
by some as a modern-day martyr, get a book deal, and end up a commentator on Fox
News or some Christian cable channel. She’s a “hypocrite trying to cash in on
her bigotry,” one commentator told MSNBC. Heaven help us all!
And finally, such brazen defiance is reminiscent of George Wallace and Jefferson
Davis and the “states’ rights” arguments of 50 and 150 years ago. I seem to
recall from the history books that we once fought a war over whether individuals
and states can choose which federal laws they will obey. Get over it, red
states: you lost.
O! To Have A Giant’s Strength
Shakespeare described a Kim Davis-like character more than 400 years
ago in Measure for Measure. When a minor
official in the play abuses his authority, the bard writes: “O! It is excellent
to have a giant’s strength, but it is tyrannous to use it like a giant.” In the
high point of the scene comes this memorable speech:
Every pelting, petty officer
Would use his heaven for thunder;
Nothing but thunder! …
Dressed in a little brief authority,
Most ignorant of what he’s most assured,
His glassy essence, like an angry ape,
Plays such fantastic tricks before high heaven
As make the angels weep.
Kim Davis is a pelting [insignificant] petty officer dressed in a
little brief authority. My guess is the angels weep at her fantastic tricks. As
should we all.
