(This is intended, in part, as a response to those who have posted comments on my article of September 5, which are too numerous to answer individually.)
Since I wrote my piece on the jailing of Kim Davis, the clerk of Rowan County, Kentucky, for contempt of court a few days ago, more of the background to that event has emerged. This helps explain why she took the course that she did, and why it was reasonable.
The main fact I overlooked is that the marriage licences issued by the country clerk bear the clerk’s signature, so that, even if she left the task to her assistants, she would be personally implicated. Given her conscientious objection to same-sex marriage, the only course of action – apart from resigning -- that seemed open to her, and that did not discriminate between couples, was to stop issuing marriage licences altogether.
There was a solution to this deadlock which the state government could have provided – and still could – as Ryan Anderson points out in a New York Times op-ed today. It could remove an individual clerk’s name and title from a marriage license.
The state already amended licenses from “Bride” and “Groom” to “Party 1” and “Party 2.” Why not make another change?
Kentucky accommodates conscience for other licenses, Anderson adds, but Governor Steven L. Beshear has, so far, refused to do this for marriage. In the wake of the Supreme Court decision at the end of June he simply ordered all county clerks to issue licenses to same-sex couples without exception.
When asked to call a special session of the Legislature to try to work out a reasonable accommodation [for those with a conscientious objection], he said it could wait until January.
Of course, it was the Supreme Court that created this problem by usurping the role of states in deciding the marriage question. Anderson again:
Had same-sex marriage come to Kentucky through the Legislature, lawmakers could have simultaneously created religious liberty protections and reasonable accommodations for civil servants. But the Supreme Court decided this issue itself — and, as predicted by the dissenting justices, primed the nation for conflict.
The state of North Carolina has shown how this can be done:
Sensing that the Supreme Court might redefine marriage, the North Carolina Legislature passed a law earlier in June creating a system to accommodate — as far as possible — the conscientious beliefs of magistrates who objected to performing same-sex marriages and clerks who objected to issuing licenses.
The North Carolina law made clear that no eligible couple could be denied a marriage license, but officials could recuse themselves should they have sincere objections. By notifying a superior of their objection ahead of time, the clerks could protect their rights of conscience while ensuring that no couple would be inconvenienced.
It is important to note that Anderson is talking about “peaceful co-existence” as the goal of living under the marriage dispensation decreed (yes, illegitimately, in the view of many Americans) by the Supreme Court. “We need not perpetuate a culture war, and we need not seek a winner-take-all-solution.”
In other words, a stand for religious liberty need not entail a denial of anyone else’s liberty under the law as it currently stands – in this case, the right created by the court for same-sex couples to obtain a marriage licence.
That Mrs. Davis’ stand had the look, in media reports anyway, of being “It’s either me or them”, “It’s either my religious belief or their idea of marriage” was unfortunate.
And her emphasis on “God’s law” and “God’s authority” rather than her conscience and America’s religious liberty tradition has, in the opinion of some conservatives, made things more difficult for winning specific protections regarding same-sex marriage.
I agree with her religious belief, and I now understand – better, at least – why she has ended up in jail. But, while I admire her courage, I don’t necessarily agree with the way she framed her resistance, nor am I sure that, given another approach, that the current outcome was inevitable.
There is a massive cultural task to be done by those who want to defend natural marriage. It is a task that involves individual and communal rebuilding through witness, practical support and persuasion, as well as political action. That alone brings a martyrdom of charity, patience and effort.
It may also demand a more dramatic kind of martyrdom on occasions, and Kim Davis has shown how that might happen. We also need to keep our eyes open and ears tuned for those who are doing the more mundane work of rebuilding marriage.
Carolyn Moynihan is deputy editor of MercatorNet, from where this article is adapted.