Saturday, September 5, 2015

Pondering upon County Clerk Kim Davis and her refusal to sign the marriage license of same sex couples.

By Dr. Norman Wise  - 9-6-15

The basic story is that County Clerk Kim Davis felt that in good conscience she could not sign a marriage license for same sex couples desiring to get married now that the Supreme Court has made this legal in all 50 states. [1]  For this decision she has been jailed for contempt of court.

(For more information see:

So how should we think about this?   I will share with you my ponderings but I am not suggesting that everyone needs to agree with my pondering.  My hope is that we can strive to understand the issues carefully.

To help us have empathy for Ms. Davis and her conscience let us imagine this situation a little different.  

Let us imagine that the Supreme Court of the United States legalized that fathers could marry their daughters and that this was a civil right for all Americans. 

A father and his eighteen-year-old daughter come to the courthouse to get their marriage license as now allowed by the Supreme Court.   Now clearly when this couple comes to the courthouse the clerk of the court might well have ethical and moral struggles now with what is legal.  Historically and culturally such a marriage was not long ago felt to be not just illegal but immoral.   So what is the clerk to do? 
One can understand that there may be a struggle with conscience in such an issue.   As we all know what is legal is not always the same as what is moral or ethical. 

Why do I make this the example? 

Because unless we can see why a person could struggle with issuing a marriage license as a violation of their conscience we could not have any empathy for Ms. Davis.   Perhaps now we can do that since from her moral and ethical system a same sex marriage is as much against the will of God and is immoral as the marriage between a father and a daughter.   Both relationships, regardless of how sincere, are against what is right in the sight of God according to the convictions of her conscience based upon historical Christian understanding of sexual morality.

We also should note here that the change in the law has come by a ruling of the Supreme Court and bypassing the process of the passing of state and local laws.  Even the law of the federal government  which was the “Defense of Marriage Act” was changed by the Supreme Court ruling on this issue in 2013 but clearly represents that there was national support for not making same sex marriage legal even at a national level till very recently.

The nation is split about 55/39 on the issue of same sex marriage with the majority favoring allowing it for only the past four years. [2]  So acceptance of this as a legal and moral norm in American culture is very recent.  Also there would be regional and cultural differences so that in some areas the majority of the people still would oppose same sex marriage being either legal or considered moral. 

So is it surprising that a clerk of the court could be still struggling with the moral and legal question?  It would be surprising if there were not many in such a struggle since at least 39% could well think that same sex marriages should not be legal or considered moral.   In fact this has led to the desire by many to want a conscience objection allowance for this issue for county clerks since their positions place them at the front lines of the actual practice of this new law.  [3] 

Normally we would want people not to be forced by law to do that which they believe to be morally or ethically wrong.    This idea of  “freedom of conscience” is important especially for people holding minority views on ethical issues such as pacifists who don’t believe they can go to war and so are not forced to join the military.

Only when people’s conscience is seen to be telling them what is evil is good would we want to force a person to act against their conscience.  So to send people to jail for not violating their conscience seems counter to some of the basic ideas found in a pluralistic society.  [4]

As Dr. James Skillen of the Center for Public Justice explains,

“Governments ought to honor the conscientious objections of its citizens against a government-imposed obligation, provided such objections do not conflict with the government's responsibility to uphold public justice."”[5] 

So sending someone to jail for holding a position of conscience on same sex marriages that has been the standard operating procedure for 2000 years of Christian history and until a few years ago in the United States seems extreme and harsh to many.   

Now Ms. Davis’ conviction of conscience came into conflict with the vow she took when taking her office if this means that she must now support same sex marriage if she supports the constitution.  It stated:

"I do solemnly swear (or affirm, as the case may be) that I will support the Constitution of the United States and the Constitution of this Commonwealth, and be faithful and true to the Commonwealth of Kentucky so long as I continue a citizen thereof, and that I will faithfully execute, to the best of my ability, the office of ——————— according to law; and I do further solemnly swear (or affirm) that since the adoption of the present Constitution, I, being a citizen of this State, have not fought a duel with deadly weapons within this State nor out of it, nor have I sent or accepted a challenge to fight a duel with deadly weapons, nor have I acted as second in carrying a challenge, nor aided or assisted any person thus offending, so help me God."[6]

Clearly the oath needs some updating since the idea of dueling has not been an issue for a few years. 

At the time Ms. Davis took this oath there was no thought that the Constitution of the United States would make same sex marriage a civil right and the Kentucky constitution incorporated the defense of marriage act. [7]  So when she took her oath there was no conflict of conscience.  The Supreme Court’s latest interpretation of the Constitution has now created for her a conflict of conscience in which she cannot support the present understanding of the Constitution which has made same sex marriage a civil right. 

So her options would be to resign her office stating to those who elected her that she could not in good conscience support the Constitution of the United States if this means she has to support same sex marriages.   This may have been the best road for her to take along with a public statement of the conflict of conscience that it had caused her.

Then the state would be wise to demand that all future clerks specifically pledge their faith and support in same sex marriages so that they could in good conscience sign marriage licenses to same sex couples to avoid this issue in the future.

However this would seem to violate Article VI of the constitution, which states that...,”no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”  It is hard to believe that ones view on same sex marriages are not impacted for many people based on their religious point of view. 

So without a “conscientious objection” clause allowing clerks of the court to not perform this duty then it would seem hard to avoid violating this constitutional right.  It is also doubtful that at a practical level this would keep any same-sex couple from gaining a marriage license. 

Others would argue that the clerk is not supporting the marriage but that he or she is merely saying the paperwork is in order.  This means that a clerk is not condoning or supporting but merely saying the paperwork legally processed.  In this case no conflict of conscience would occur.   But this depends on how one interprets the role of the clerk.

However, if supporting the U.S. constitution now means that we have to believe that same sex marriage is a constitutional right then even four of nine Supreme Court Justices would not be able to support the constitution.   So clearly disagreement on this issue is allowed as a minority view for those who still believe in the Constitution.   It appears we need to find an answer that allows tolerance in our pluralistic society. 

Only if religious conviction concerning same sex marriage is in the same category of the religious beliefs of the KKK would most people understand that such extreme views could not be allowed a “conscientious objection” clause.  Seeing this was the majority view just a few years ago nationwide and even in the state constitution of Kentucky then it hard to equate this perspective as that extreme. 

Now most people would just violate their conscience to keep their jobs, avoid fines, or go to jail.  Such moral and ethical dilemmas only occur when people of conscience refuse to compromise their conscience even under the compulsion and punishment of the state. 

Now just because someone takes a stand on the basis of conscience does not make him or her right.   But in a tolerant and pluralistic society we should find compassionate ways to allow dissent.  The conscious objection clause has been one way historically the majority has allowed the minority a way to function in the society. 

Regardless of where one stands on the legality of same-sex marriages or it ethical status the role of the state in jailing someone because of their convictions should raise concerns.  If the state can jail Ms. Davis for her convictions today then they could jail someone else tomorrow on a matter of conscience, which you would agree with.  So this needs to be of concern for all of us.

Tolerance and freedom in a pluralistic society demands we find ways to agree to disagree in an agreeable way and not force people to act against their most strongly held beliefs.  Dietrich Bonheoffer the Lutheran Pastor martyred for his opposition to Hitler warned of the danger of tolerating the violation of the right of others when he said

“First they came for the Communists, but I was not a Communist so I did not speak out. Then they came for the Socialists and the Trade Unionists, but I was neither, so I did not speak out. Then they came for the Jews, but I was not a Jew so I did not speak out. And when they came for me, there was no one left to speak out for me.”

Justice Scalia comments concerning the 2013 reversal of Defense of Marriage Act.

"Some will rejoice in today's decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better."[8]

This points out that if we had allowed local governments the ability to pass local laws instead of the Supreme Court making one decision for nation overnight it may have helped us find better solutions to the difficult transitions we face due to the erosion of a Christian view on marriage that is happening in our nation. 

Some Key Final Thoughts:

1.  We need to not be surprised that a nation that has largely lost a firm foundation in a Christian worldview is not supporting the Christian view of marriage.   Biblical Christianity in the United States needs to be seen as a “Counter Culture” living in the context of a society largely dominated by non-Christian perspectives on morals and ethics. 

2.  We will need to think about how to be “gentle as doves and wise as serpents” in dealing with issues since we need to make clear our love for all people regardless of their beliefs or lifestyles. 

3.  We can expect the civil laws to become less and less supportive of the Christian worldview or its moral standards unless there is spiritual and moral revival.

4.  We need to be praying for spiritual revival, renewal, and reformation that would help bring larger numbers of our fellow citizens to true and mature faith.

5.  The Christian worldview clearly teaches that same-sex marriage is not the will of God and that all same-sex romantic relationships are immoral.  At the same time we must state that all sexual relationship outside of a one man and one woman heterosexual marriage fall short of God’s ideals and that only when sexual activities are motivated by love in such relationships do they represent a proper use of the gift of sexuality by humanity.  All human beings fall short of God’s perfect will sexually and need forgiveness in this area. 

6.  We need to make sure we not approach this subject from the perspective of anger or self-righteousness.  Our message of being sinners saved by grace alone must not get lost in our stand for moral principles.  It is vital that we not communicate in such a way that would make people think we are intrinsically better or brighter than others with whom we disagree.  Our attitude must be “except for the grace of God there go I.”

7.  We need to be looking for ways to promote a attitude of true tolerance and plurality that will allow people to practice Christian principles in the public square without persecution. 

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