Contempt of Conscience

You've probably heard of the Kim Davis case by now. And, if you haven't, congratulations on being the first person to reach Mars.

Who's a geek now, Steve?

Anyway, in case you do happen to be reading from the red planet, Kim Davis is a county clerk from Kentucky who has been jailed for contempt of court, after refusing to issue marriage licenses to gay couples. Since the Obergefell vs Hodges ruling in June, a number of counties have entirely stopped issuing marriage licenses in order to avoid issuing them to same-sex couples; Rowan County, where Davis worked, among them. Last month a federal court ordered that marriage licenses must be issued; when Davis continued to refuse, she was imprisoned. (The plaintiffs -- two gay couples, two straight couples, and the ACLU -- had asked only that she be fined, but the judge in question dismissed this as ineffectual, on the grounds that the fine would be paid for her by supporters.)

Most of the people that I've seen talk about the case on social media have been on the side of the courts: admittedly, when she originally took the job, she had no way of knowing that it would later come to require of her that she transgress her conscience; but that's what the law does require now, and if she refuses to do that then she ought to resign. It's easy to see the strength of such an argument. Nor is it without precedent; St Thomas More chose to resign in silent protest when Henry VIII defied the Church by repudiating Catherine of Aragon and marrying Anne Boleyn.

And Davis' own defense -- that she has divine and biblical sanction for her actions -- is a dubious one. That is, there is no reason to suppose that her beliefs are insincere in any way, but one can hardly maintain that those religious beliefs are relevant to civil law; the separation of church and state is enshrined in the First Amendment (not phrased in those words precisely, but it really doesn't matter; what's at stake is the substance of it), and to obtrude a solely religious basis for a political act is, in consequence, dodgy, especially as a state official.

The Catholic Church takes a slightly different angle in its objections to gay marriage. Its contention is not that gay marriage contravenes the Bible's definition of marriage, but that the natural character of marriage, apart from any question of divine revelation, is directed toward bringing children into the world. And this is certainly how most societies in most places and times have viewed marriage, which is partly why polygamy, divorce on grounds of barrenness, and the keeping of concubines have so often been culturally acceptable. (We may, of course, regard this general witness of humanity as inadequate to change our own minds, but whatever that witness is worth, this is its testimony.) Hence, a gay union, because it can't produce children, is regarded as not being a marriage ipso facto. It certainly doesn't follow from this that no legal recognition could or should be given to gay unions; only that the specific kind of recognition accorded to marriage should be unique.

If this, rather than marriage as found in Scripture, were Davis' position, she'd be in a much stronger position -- for in that case, she would be not refusing to obey a law because it conflicted with her religious faith, but refusing to obey a law because she thought it was unjust. As things are, she does seem (in my view) to be blurring the categories of civil and religious obligations, and resignation would probably have been a neater and more conscientious solution. It's partly for this reason that, though I am a fervent defender of religious liberty, I don't see this as essentially a question of religious liberty, because I don't think the nature of marriage is a specially religious question in the first place.

But, though I disagree strongly with the grounds on which she made her decision, I'm not writing this to criticize Kim Davis' actions. I'm writing to praise her.

By obeying her conscience and peaceably accepting imprisonment, Davis has entered the high tradition of civil disobedience. Indeed, refusal to comply with a law and accepting the penalty for your refusal is civil disobedience in a nutshell. Gandhi, one of the great sages of that tradition, taught with great care and emphasis that the thing that makes passive or civil resistance righteous is precisely this decision to accept the consequences, to suffer in oneself rather than inflicting suffering on others by violence -- and, incidentally, pointed out also that if a person is mistaken in their views, civil disobedience has the advantage of causing only themselves to suffer for the mistake. Martin Luther King followed the same teaching, influenced by students of Gandhi and Christian pacifists.

I would, also, pose a question to those who criticize her for failing to do her job. Without wishing to cast any doubt on the sincerity of your beliefs, have you ever gone as far as she has in standing up for what you believe? Could you go to prison in defense of gay marriage? What, in fact, did you do for gay marriage, aside from some Facebook likes and a drunken rant to a friend after your poli-sci midterm?

Kim Davis (probably)

And the members of this tradition are frequently found guilty of contempt of court, because they consider themselves answerable to something else: their consciences.* I have nothing but respect and support for that. I for one would far rather be found in contempt of court, than know within myself that I am guilty of contempt of conscience. To carry that knowledge with you, sleeping and waking -- no. And while an individual may be mistaken about right and wrong, that's true of courts too. Unjust laws, and for that matter unjust judges, have existed at least as long as history -- that was kind of the point of the gay rights movement, wasn't it? Law itself is worthless unless it embodies justice; justice is superior to all law; and justice is known, not by legal fact or precedent, but by the inner witness of the soul as tutored by the intellect. A person can be persuaded that their beliefs are incorrect, and therefore change them. But as long as they do hold those beliefs, obedience to them is what makes for a clear or a guilty conscience.

People will say that Kim Davis is no MLK. Certainly not. And, yes, her own track record on marriage is by no means a perfect one.** But we do not earn the right to obey our consciences by being saints already, or even mere heroes. Obeying your conscience is what raises you to heroism. I think that Davis' decision to follow the path of civil disobedience in this case, even though I disagree with her grounds for doing so, ennobles her.

*All of the civil resisters that I know of have also been religious; their obedience to their consciences has been inviolable to them because they believe that conscience is, in Newman's phrase, the aboriginal Vicar of Christ. While this trend is certainly present, I don't know that it's necessary to civil disobedience. I see no reason why an atheist or an agnostic couldn't make a good civil resister. Furthermore, insofar as these acts are a testimony to conscience and an urge to others to heed their own consciences, I don't believe that civil disobedience involves us in the mixed-up premises that Kim Davis has espoused.

**She has been married four times (twice to the same man). A good deal of chaff has been blown up over this fact. I'd point out a few things in response: first, that her experience of religious conversion only took place in 2011, so that her zeal on matters marital may well be a recent and comparatively unsoiled thing; second, that we are not privy to the nature and circumstances of her marriages (or not that I'm aware), which could possibly be innocent or at least very pardonable, and that presuming the worst of others is an ugly way to behave; and third, that having a poor moral history oneself is not a good reason to transgress one's principles further merely because it would be consistent.