Collect


Preface for Paschaltide

It is very meet, right, and our bounden duty, that we should at all times, and in all places, give thanks unto thee, O Lord, holy Father, almighty, everlasting God; but chiefly are we bound to praise thee for the glorious Resurrection of thy Son Jesus Christ our Lord; for he is the very Paschal Lamb, who was sacrificed for us, and hath taken away the sin of the world; who by his death hath destroyed death, and by his rising to life again hath won for us everlasting life.

Monday, September 7, 2015

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.

10 comments:

  1. Hey man, I basically think I agree with your position here. I think she is in error in her reasoning on this issue, and I think it would have been a better call for her to have resigned given her apparent unwillingness to recognize that she is acting as the state and not as a religious official (the core of he position seems to rest on a conflation of spiritual and secular marriage). But I see no reason to doubt that her beliefs are genuinely held and I can respect her for following her conscience. This looks to me like a legit case of civil disobedience. But the whole programme of civil disobedience is to call society's attention to the injustice of unjust laws and I south she has much accomplished that. Also as a civil official and someone practicing civil disobedience she needs to accept the judgement of the civil authority with good grace (and it seems she has, though not all of her supporters have been so gracious, but then neither have her too-oft-mudslinging-detractors). So she was right to follow her conscience, and the state was right to enact the due penalties in this instance. Now as a society we need to deal with the questions this raises.

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  2. Well presented. I aspire to a similar position but my lack of charity prevents it.

    Question: What is your position regarding her having instructed her subordinates to stop issuing licenses? I find it to be somewhat irresponsible to force possibly unwilling persons into joining your own acts of civil disobedience.

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    1. It's a quite ticklish question for me, actually. For what it's worth, my personal outlook on this specific matter is as follows:

      1. Marriage, as a natural and civil institution, is directed toward procreation (irrespective of the decisions of governments).

      2. Kim Davis' civil disobedience, while morally confused, is materially right; in other words, she did a right thing for poor and inadequate reasons.

      3. Subordinates who do as their superiors instruct them should not be held responsible for accepting instructions (unless grave and manifest injury is involved, as with instructions like "Stab that dude").

      Exactly how applicable these views and principles are more generally, I'm simply not sure. Basically, I don't think she's irresponsible for issuing the aforesaid instructions because I don't think the law should hold underlings accountable for a superior's decisions. That may, I admit, be an excessively optimistic view.

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    2. Since Kim Davis was, in essence, (civilly) disobeying an order from *her* superiors, might it be ethically appropriate for her subordinates to disobey *her* orders if they objected to them? They would essentially be obeying orders from their boss' boss. Sort of like if I refused to obey instruction from my Store Manager because my District Manager told me otherwise (sorry, Starbucks/retail example).

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    3. Holy crap, I cannot believe I forgot to answer this. Oh dear. Well, if you come back to take a look -- I'm honestly unsure. How hierarchical authority is in fact regarded by the law, and how it ought to be regarded by our consciences, in this kind of situation, is a question I don't feel competent to answer.

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  3. Hey Gabriel, I'm not sure that this changes your analysis any, but I do think it's specious to say that Mrs. Davis had no idea that she would be legally required to issue a gay marriage license (although she has claimed this to be the case, so I'm not faulting you or anything like that).

    The state of Kentucky was involved in gay marriage litigation as early as July 2013 (https://en.wikipedia.org/wiki/Bourke_v._Beshear), and Mrs. Davis was not elected Clerk until November 2014. She should have known that gay marriage licenses emanating from Clerk's offices across the Commonwealth was a very real possibility, especially given that Love v. Beshear was decided in July 2014 in favor of SSM in Kentucky.

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    1. You make a fair point. I didn't know about the history of Kentucky as regards gay marriage, nor of most things said by Kim Davis on that score. It may easily be the case that she expected Obergefell to be adjudged otherwise, and so for other federal and state cases, so I'm willing to give her the benefit of the doubt as far as what she expected her duties to be.

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  4. This makes sense. I especially like your point about standing up for what you believe in. That's the second reason St. Maria Goretti is my favorite. (The first is chastity. Gotta go with the easy one first. Forgiveness is third; I struggle.)

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  5. Only if you could put your thoughts into Internet Meme form, then and only then people would listen!

    Well maybe not listen, but definitely liked and shared to whatever awesome thing you just generated..

    Lovely words, already shared a quote or two of yours.... But I'm swimming in a sea of "if you're faith hates, your religion is wrong" type images along with an image of Dick Cheney overlapping Kim Davis.

    Too bad you don't have a gimmick like George Takai
    Oh My...



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  6. I have disapproved of Davis' actions, but I agree that there is something noble in her standing up for what she believes. I do, overall, believe that this case has been made into a sideshow of sorts in that many Christians (perhaps even Davis herself) have wanted a case like this so that they could say they are being victimized and Christianity is somehow under attack. Likewise, there are many who do seem to want to stick it in the eye of Christians, believing Christians just want to dominate over them or should somehow be cast to the side of society for past grievances. Both sides, in this case, seem to be in the wrong. There was no reason in the world for any judge/court to have allowed things to escalate to the point that Davis would have to be jailed. That decision was completely ridiculous. Likewise, however, Davis herself could have simply agreed in the first place to allow the secular law to act on its own without her compliance/involvement, which seems to be the course she is taking now.

    I long for the day when Christians won't feel so threatened by things like this. Allowing gay marriage in this country in no way diminishes traditional marriage. Traditional marriage will exist with or without gay marriage, unharmed. Likewise, with or without approval, gay couples will always find some way to exist either in a marriage like state or not.

    This whole issue, to me, just seems like a whole lot of guff about nothing... just people wanting to fight each other because they can't or don't want to accept their differences, both sides wanting to impose their beliefs onto others. In that, I view this case very disappointing and unfortunate.

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