The Case for Kim Davis: Part Two

GRAYSON, KY - SEPTEMBER 8:  Rowan County Clerk of Courts Kim Davis speaks next to her attorney Mat Staver (R) and Republican
GRAYSON, KY - SEPTEMBER 8: Rowan County Clerk of Courts Kim Davis speaks next to her attorney Mat Staver (R) and Republican presidential candidate Mike Huckabee (L) in front of the Carter County Detention Center on September 8, 2015 in Grayson, Kentucky. Davis was ordered to jail last week for contempt of court after refusing a court order to issue marriage licenses to same-sex couples. (Photo by Ty Wright/Getty Images)

The responses to my column "The Case For Kim Davis" are for the most part thoughtful and raise important issues. I say "for the most part" because I want to set aside as not in the ballpark comments like, "Religious beliefs are absurd in the first place," or, "All religion is fiction." Those who make statements like these or deride religion as a vestige of medieval ignorance (actually, the Middle Ages were enormously sophisticated) announce that they can't take the Kim Davis matter seriously -- they can't take seriously the dilemma of someone who finds her legal and contractual obligations in tension with her obligations to God. It is as if someone invited into a discussion of the Common Core curriculum were to say, "I don't believe in education." He would not be contributing to the discussion, but trashing it in advance, and the genuine participants in the conversation would be within their rights to say (as I say now to the religion-haters), 'Well, you've opted out so go sit in your corner and be quiet.'

I am not so ready to dismiss those who regard religion as a hobby (like stamp collecting or bungee jumping) or an ornament (there's all that nice music and those gorgeous vestments) that is perfectly alright if it keeps its place, but something that must give way to more serious things like the rule of law. It is not that those who think this way don't take religion seriously; rather they take seriously a truncated, diminished version of it -- a version that keeps it safely sequestered in large buildings open mainly on Fridays, Saturdays and Sundays -- and become very nervous when a more robust version of religious practice comes to the fore.

A good example is the commentator who declares that, "The problem comes when religion goes off the rails by requiring its disciples to believe in things that are contrary to the democratic goals of freedom and fairness." I would rephrase this to read, "The problem comes when religion stays on the rails of the track it is commanded to ride and refuses to switch onto the track of an alternative authority and prefer a rival's values to its own." Freedom and fairness are prime values in a vision of political life that has at its center the exaltation and protection of individual rights; it is not so much the choices individuals make that are honored but their capacity to make them. A rights regime -- and that is what the liberal state is -- is largely indifferent to the content of the rights being exercised and cares only that, when exercised, they leave room for the exercise of those same rights by others.

In contrast, religion's prime value (and here I'm talking about the theistic religions like Christianity, Judaism, and Islam) is obedience. The individual believer is not free to choose her own way and follow her own path; she must adhere to the path set out for her by a supreme, supra-human authority; she must keep to the way another has established. ("I am the way, the truth and the life.") She cannot cast off the tenets of her religion when they conflict with worldly mandates. She cannot, that is, exercise her religion intermittently, on weekends and sacred holidays, and dance to secular tunes for the rest of the time.

Yet some want Kim Davis to do this. They say that her religious freedom has not been burdened because she can still believe what she wants and worship where she wants. They say she has the right to believe what she believes (thank you very much!), but "not to act on her beliefs." They say that Judge Bunning's ruling did not outlaw or discourage her religious practice. They say that "religion is a personal matter." They say that "religious beliefs are best practiced at home."

These declarations, culled from the comments (and there are many more like them), amount to a secular pronouncement on the proper scope of religious belief and practice: The practice is proper when it is confined to thoughts or to rituals acted out in the church and the home; the practice is proper when it remains personal -- a transaction between Davis and her God -- but not when it spills over into actions performed in the public square. Restricting religious exercise in this way makes it manageable by the liberal state, which can display its liberality by quarantining practices it doesn't take seriously in safe places where they pose no threat to the state's hegemony.

But what do you do with those who, because they adhere to a religion that does not recognize the private-public distinction, decline to leave their religious convictions at home when they venture out into the world? Well, you can demonize them, as some of the respondents to my column do, or you can say, 'Well, this is not my cup of tea, but nevertheless a significant number of my fellow citizens drink from this source, and perhaps we should find a way to accommodate them without turning our republic into a theocracy.'

Note that accommodation does not mean acceptance of religious tenets or even a deep understanding of why some hold to them so fiercely. You can remain puzzled by what appears to you to be baseless zealotry; you can even be incredulous in the face of obdurate commitments to something for which there is no empirical evidence. But you ought not to doubt the sincerity of those who hold such commitments or demand that fidelity to them only take the form sanctioned by secular values. You might decide that flexibility tempered by generosity is the better path.

That may be well and good (the reply would come), as long as these "sincere" religionists do not impose their beliefs on others. This is the key complaint against Davis's stance and actions: She is forcing citizens of Kentucky who seek marriage licenses to conform to her religious convictions, and by doing so she is establishing a state religion in violation of the First Amendment. But in fact she's doing nothing of the kind. She is trying to live out her faith and she finds her efforts toward that end frustrated by the requirement that she issue marriage licenses to same-sex couples. It is not that she wants to stop them from getting married; she just doesn't want to be associated with it.

She and her lawyers ask only that when the licenses are issued, they bear neither her name nor the name of her office. As UCLA law professor Eugene Volokh explains, Davis was not satisfied with Judge Bunning's plan to have the licenses handled by her deputies because under that arrangement the licenses and certificates "are still being issued (in her view) under her ostensible authority, even though Davis has not authorized them." In short, as Amy K. Hall observes, "her goal is not to impose her views on people trying to obtain licenses, although that was the unintended consequence while no licenses were being issued." (It might be said that whatever her goal, those who do not receive licenses are inconvenienced, but that could also be said of Davis who is inconvenienced, and more, when the state, with no intention to burden her faith, requires her to do something that in her view violates it.)

But isn't the fact that she is an elected official mean that an accommodation is not available to her and that her choice is either to do her duty or resign? This is the second most voiced complaint against Davis's position and also against my citing of cases that involve accommodations given to private persons. Again the answer to the question is "no." It is true that under Title VII of the federal Civil Rights Act elected officials cannot receive religiously-based exemptions, but as Volokh points out, Kentucky, like a number of other states, has a state Religious Freedom Restoration Act, and these statutes do not rule out "accommodation claims by elected officials."

Of course the claim is not automatically granted and could be denied if a court determined, for example, that requiring Davis to issue licenses did not in fact substantially burden her religious exercise. That essentially is what the federal district court in Kentucky determined, reasoning that because Davis "may continue to attend church twice a week, participate in Bible Study and minister to female inmates," her religious activities have not been curtailed. But as I argued earlier, this is an impoverished view of religious exercise that reflects the liberal refusal to take religious faith seriously except as something you attest to in private where it doesn't bother anybody.

Under a more robust view in which her duties involve more than church attendance and charity work and extend to doing (or refraining from doing) work in the world, the burden on Davis could be said to be considerable. Here is Volokh making just that point: "If Davis believes that it's religiously wrong for her to issue licenses with her name on them, ordering her to do that indeed burdens her religious beliefs" and giving her a modest exemption (one that did not unduly impair the work of the clerk's office) might "indeed be required by the Kentucky RFRA." (And it won't do to argue that she's not condoning anything by affixing her name; that's for her, not an outside monitor, to decide, and she has obviously decided, in accordance with the First Amendment category of "compelled speech," that she doesn't want even the appearance of signing onto a practice she believes to be sinful.)

There are a lot of "mights" and "coulds" here, and it is by no means certain either that Davis will receive an exemption or that she should receive one. That is a question for the courts, which must draw the appropriate lines. But it is a real question and that's all I've been saying in these two columns: There is a case for Kim Davis to be made, and while that case may not prevail, it is not frivolous or absurd or outrageous or entirely without merit as some who have posted here maintain.

This brings me to a final point. Some posters castigate Davis for being self-righteous; but if there were a self-righteousness competition, Davis's critics would win it hands down.