County Clerk in KY and Same-sex Marriage Licenses

What I’m writing today (Sept. 2) reflects one day of pondering and the situation as I understand it. More pondering or more facts could revise my thoughts.

I’m heavily influenced by Thomas Jefferson’s statement, “No provision in our constitution ought to be dearer to man, than that which protects the rights of conscience against the enterprises of the civil authority.”

Government at all levels should strive to accommodate conscience rights as much as possible while still furthering its legitimate purposes.  For example, providing for the national defense is of the highest constitutional order, but conscientious objectors are exempt from service even though that means others many have to serve and put their lives at risk in the stead of the CO’s.  Arguing from the greater to the lesser, this same protection should apply to much more ordinary matters.

“Reasonable accommodation” of religious beliefs in workplace situations is a well-established principle. It is not an absolute, but it is strong.

Only extremists would argue that government should always compel, or that conscience must always prevail.  But I’ll push the meter as much as can justly be done in the direction of freedom of conscience, no matter what the issue.

I don’t know the Kentucky situation well.  Is this one county clerk the only one in the region who can say yes or no?  Are there alternatives, or are the applicants just trying to have a crusade against this one person?  Areas like LA, by contrast, would have many other clerks available, I’m sure.  This is from the Washington Post (Monday, Aug. 31):

“In her defense, her lawyers described Davis in a court filing as ‘a professing Apostolic Christian who attends church worship service multiple times per week, attends weekly Bible study, and leads a weekly Bible study with women at a local jail.’ It says she fasted and prayed for weeks before deciding that she would not issue marriage licenses to gay couples.

“Her lawyers say there are more than 130 locations around the state where same-sex couples can get licenses, including seven counties neighboring Rowan. They also argue that other steps could be taken to accommodate Davis’s religious beliefs.

“For example, a clerk from a neighboring county could be deputized to issue licenses in Rowan County. The state could remove all references to a clerk’s name on marriage licenses. Or lawmakers could overhaul the way Kentucky licenses marriages.”

In this case, the particular clerk has been able to serve her task without conscience issues until same-sex marriage became a protected right.  So this is a new feature to her role, and I can understand her angst and conflicted conscience.  Imagine a doctor or nurse in the ob-gyn specialty who is dedicated to saving nascent human life and who believes abortion is murder but then is pressured by a hospital to participate in abortion.  Mostly their consciences are protected, but there have been many challenges.  Even clergy, now conscience-protected, have reason for concern.  According to a Barna poll in July, “There is a substantial minority among Americans under 40 (26%) who believe the law should compel religious institutions and clergy members to perform same-sex weddings.”

When same-sex marriage was legalized in California in 2008, the Long Beach Press-Telegram editorialized with this assurance: “Conservative religionists have nothing to fear. Their religious practices and their personal definition of marriage are intact.”  The ink wasn’t even dry on that editorial when Los Angeles City Attorney Rocky Delgadillo demanded that the county registrar not allow employees who are uncomfortable with gay marriages to excuse themselves from officiating at such ceremonies.

The Kentucky clerk has two primary options—resign or fight on.  Both have weighty implications for her and her family. I’ve counseled many an individual over workplace conflicts involving conscience.  Each has to be individually considered.  What is being ordered or forbidden?  Is this a core issue or a peripheral one?  What are the options and recourses, both legal and non-legal?  Is the issue bigger than one individual, to where staying on is needed to fight a larger cause?  Are there alternatives that might achieve a “win/win” (an important question and an appropriate quest in a diverse society—the Washington Post quote above suggests there are)?  Usually I’d recommend resignation, but by no means always.  If this clerk stands fast, she must bear the consequences, though I expect she would receive a lot of support.

Now, here’s a situation that is comparable, I think, but more troubling because of the high government position involved. The California Attorney General takes an oath of office that says (emphases mine):

“I, ___________________________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States and the Constitution of the State of California against all enemies, foreign and domestic; that I will bear true faith and allegiance to the Constitution of the United States and the Constitution of the State of California; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties upon which I am about to enter.”

Kamala Harris took that oath but then refused to “defend…the Constitution of the State of California” as reported:

SAN FRANCISCO (March 26, 2013) — Attorney General Kamala D. Harris issued the following statement on today’s Proposition 8 arguments before the U.S. Supreme Court:

“I declined to defend Proposition 8 because it violates the Constitution. The Supreme Court has described marriage as a fundamental right 14 times since 1888. The time has come for this right to be afforded to every citizen.”

Now, she may be right about what the court says about marriage and the Constitution—five justices seem to agree. But her job isn’t to make that judgment but to defend a provision of the California Constitution in court.  It is a simple syllogism:

  1. Major Premise: The A/G must defend the CA Constitution
  2. Minor Premise: Proposition 8 is part of the CA Constitution
  3. Conclusion: Therefore the A/G must defend Proposition 8

She was reaching for her conclusion before there was one. In citing Supreme Court decisions, she should have looked back to 1878 (Reynolds), when the court ruled against the Mormons and said bigamy was not a right. Following her refusal to defend the state constitution, the court found that the proponents of Prop. 8 lacked standing before the court.

I can be neutral on both cases, but still believe that both the Attorney General and the County Clerk in KY are arguing conscience above law.

From a biblical standpoint, the argued position is that the laws of the state must be honored and obeyed but in a time of conflict the Law of God supersedes the law of the state (Acts 4:19). This principle is exemplified often in the Bible, such as when an order forbidding certain prayers was made during the Persian rule and Daniel, a government official, violated it (Daniel 6:6-10). As a Christian, my confession, “Jesus Christ is Lord!” is not subject to compartmentalization and cannot be confined to some sacred space surrounded by stained glass windows.

If I had to advise at this moment, I’m not sure what I would say though I might lean toward advising resignation. Frankly, I predict she will continue to lose any legal action she takes. However, if she and her counsel see the presence of larger issues, I’d allow that she should remain and take the consequences. I’m disappointed that efforts at accommodation are not going forward because it appears that other options do exist, and accommodation is consistent with a free society. Sadly and with regret, I find that in matters like this, many activists are practicing a “take no prisoners” modus operandi.

Donald Shoemaker

September 2, 2015

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