The Kim Davis saga and the religious right’s skewed view of religious freedom
When Keith Bardwell, a justice of the peace in Louisiana, turned away a couple looking to get married in 2009, he cited personal objections to justify his decision to withhold a marriage license. Bardwell wasn’t hailed as a culture war hero, greeted with a campaign rally or praised by presidential candidates. Instead, the state’s Republican governor, Bobby Jindal, said that Bardwell should lose his job: “This is a clear violation of Constitutional rights and federal and state law. Mr. Bardwell’s actions should be fully reviewed by the Judiciary Commission and disciplinary action should be taken immediately, including the revoking of his license.”
“Mr. Keith Bardwell’s personal beliefs are his own, but his responsibility as an elected official is to provide services to the public,” a local newspaper editorial said. “Marrying people is part of the job as long as the couple has a valid license and they are of legal age.”
Bardwell insisted that he simply wanted an accommodation for his personal beliefs, claiming that the couple could have gone to a different justice of the peace who didn’t share his objection.
While Bardwell did not cite any religious objections — he instead maintained that the couple’s marriage would be harmful to children and violate his personal views — he could have easily cited the many religious figures who have claimed that such marriages violated biblical commands.
Bardwell ultimately resigned from his post, a step that Jindal called “long overdue.”
The marriage that Bardwell had refused to perform was that of an interracial couple.
Louisiana was one of the 16 states whose laws banning interracial unions were struck down by the Supreme Court’s 1967 ruling in Loving v. Virginia. A Gallup poll conducted the following year found that 73 percent of the public disapproved of interracial marriage. Interracial couples were condemned by many as sinful.
While it would be shocking to find a politician today who would support a public official like Bardwell who wanted to unilaterally deny marriage licenses to interracial couples, Republican leaders are now rallying around a small handful of officials who likewise believe that their personal beliefs about marriage should trump the country’s legal system.
Jindal is now attacking his rivals in the race for the White House for taking the exact same stance that he did in 2009 when Bardwell tried to deny a marriage license to a couple who were legally eligible to marry. Jindal now says that state officials should be exempt from issuing marriage licenses to legally eligible couples if they have personal objections, claiming that it is their right based on personal conscience — a right apparently not afforded to Bardwell.
So what changed?
The Supreme Court’s decision in Obergefell v. Hodges, which overturned state laws banning same-sex couples from marrying, just as Loving had overturned interracial marriage bans decades earlier, was handed down in June of this year.
Republican presidential candidates including Jindal, Mike Huckabee, Ted Cruz, Rand Paul, Ben Carson and Rick Santorum have hailed one Kentucky clerk, Kim Davis of Rowan County, who has attempted to prevent her county office from issuing any marriage licenses following the Obergefell decision, citing her own personal objection to gay couples getting married.
Some of Davis’ defenders, including Huckabee, have claimed that because Kentucky has not yet rewritten its unconstitutional ban on gay marriage (much as Alabama and other states took decades to rewrite their unconstitutional prohibitions on miscegenation), gay marriage is still “illegal” in the commonwealth. The clerks in Kentucky who complied with Obergefell, Huckabee reasoned, may actually be committing felonies by issuing marriage licenses to same-sex couples. In fact, Huckabee said, it is the judge in the Davis case who should face “proceedings” for putting Davis “in jail because she’s a Christian.”
Davis didn’t just refuse to issue marriage licenses herself; she ordered her deputies to follow her lead. Following a standoff with a federal judge, who temporarily put her in the custody of U.S. Marshals after she said she would not comply with court orders, Davis ultimately allowed her deputy clerks to issue licenses, but then changed the wording on the licenses, possibly putting their legal standing in doubt. The Louisville-based Courier-Journal reported:
Davis has modified wording on the licenses to remove any mention of her name or office. A license now states that it was issued pursuant to a federal court order rather than the county clerk, and a space normally signed by the deputy clerk is now initialed by a “notary public.”
Like Bardwell, Davis is not exercising her First Amendment rights to free speech and religious liberty; she is instead imposing her personal views on a public office, thereby denying rights to others. While the county office is meant to serve the county’s residents and taxpayers, Davis and her supporters insist that residents must instead leave the county and go elsewhere if they want to access government services. (That is, assuming that clerks in the neighboring counties are not also refusing to do their jobs). Some conservatives even suggest that residents seeking to access services that they pay for with their tax dollars are committing an act of persecution against public officials who refuse to perform the duties of their office.
It is no more acceptable for Kim Davis to impose her personal views about same-sex marriage on residents of a Kentucky county than it was for Keith Bardwell to impose his personal views on interracial marriage on residents of a Louisiana parish. Davis is just as free to oppose same-sex marriage as Bardwell is to oppose interracial marriage. Performing their job duties by simply recognizing that legally eligible couples applied for a marriage license in no way can be seen as an endorsement of such marriages, in the same way in which a Roman Catholic clerk isn’t endorsing divorce by processing the papers of a couple that includes a previously divorced spouse. In addition, since these officials are government employees acting in their official capacities, discrimination by them is discrimination by the government, which the 14th Amendment’s Equal Protection Clause was adopted to prohibit.
Do Public Offices Belong To One Individual Or The People?
Davis and her supporters are not asking for a narrow accommodation, as they claim, but are instead trying to distort the First Amendment, rewrite the purpose of public office, and undermine the concept of judicial review, or the power of the courts to strike down a law that violates the Constitution.
Davis has been very clear about how she sees her role as a county clerk, telling a gay couple while denying them a marriage license for a fifth time that she would not abide by a court’s order that the county resume issuing licenses because she was invoking “God’s authority” in the matter. She told Fox News pundit Todd Starnes, whose specialty is writing persecution narratives about conservative “martyrs,” that she would neither resign nor retire because then “I would have no voice for God’s word.”
“I’m just a vessel God has chosen for this time and this place,” she told Starnes. “It was my appointed time to stand.”
Just as she told one couple that they must prepare for their “time for judgment,” Davis told Fox News that she wants to use her office to evangelize others: “All I can say to them is if they have a sordid past like what I had, they too can receive the cleansing and renewing, and they can start a fresh life and they can be different. They don’t have to remain in their sin, there’s hope for tomorrow.”
Another Kentucky clerk who is also barring his county office from issuing marriage licenses, Casey Davis (no relation to Kim), also explained that he would not issue licenses because it would undermine his ability to use his public office toevangelize to gays and lesbians.
When you stand for what’s right and when you tell someone of the danger that they are in, and I think that when a person lives a lifestyle of sin, whether it is homosexuality or drunkenness or drug addiction or adultery or thievery or any kind of sin that you continue in or live in, you are endangering yourself of spending eternity in Hell. So in my view of what the Bible says, when you’re truly loving someone, you stand and you lovingly tell them, ‘This is not the way to Heaven, this is not the way of right.’ And I think when we leave the tape on our mouth that society has placed and when we stop telling people that there is a way, there is a truth, there is a life and it’s the blood of Jesus Christ, when we stop telling people that, we’re not expressing love to them at all. I think that loving people means that we tell them the truth and the truth is Jesus Christ and the way of the Cross.
I have determined that God’s placed me here so that I can tell people, ‘Hey there is a higher power that we need to answer to, and it’s not people who wear black robes, it’s the one that wears the white robe.’ If we’re going to be Christians, then we need to be Christians. If we’re going to have faith, then we need to have faith in God because that’s ultimately the law that will supersede every other law, and that’s the law of God, God’s word.
Davis has promised to go to jail or even die in his quest to deny marriage licenses to gay couples, although he has yet to be tested, as no same-sex couple has sought a marriage license from him.
While no one is stopping either Kim or Casey Davis from evangelizing on their own time, the pair is trying to use taxpayer dollars and public offices to impose religious doctrine, proselytize to others, and deny people their rights. These county offices do not belong to them, they belong to the people of their respective counties.
As the Sixth Circuit Court of Appeals told Kim Davis:
The request for a stay pending appeal relates solely to an injunction against Davis in her official capacity. The injunction operates not against Davis personally, but against the holder of her office of Rowan County Clerk. In light of the binding holding of Obergefell, it cannot be defensibly argued that the holder of the Rowan County Clerk’s office, apart from who personally occupies that office, may decline to act in conformity with the United States Constitution as interpreted by a dispositive holding of the United States Supreme Court.
The two clerks, while claiming to be victims of religious persecution, are actually attempting to impose their religion on others, both public employees and citizens at large, turning public offices into evangelism centers with taxpayer funding.
The Family Research Council invited both Davises to speak at its September gathering, the Values Voter Summit, where the Rowan County clerk received an award for challenging “legal tyranny” and “militant secularists” and saying “‘no’ to judges who redefine the revealed truth of God.” Speaking at the event, Davis’ lawyer, Mathew Staver of the conservative legal group Liberty Counsel, displayed a photo that he claimed showed one hundred thousand people attending a prayer rally for Davis in Peru. It was later discovered that the photo was taken at an entirely different event in 2014.
The Family Research Council’s adamant support for Davis and other clerks with similar views is so extreme that even Ken Klukowski, a former legal strategist for the group who directed its Center for Religious Liberty, has said that Davis has no legal ground to stand on.
Klukowski argues that Davis should be compared not to a conscientious objector seeking a noncombat role in the military but to a pacifist who takes command of a rifle company and announces that he is “going to order all the troops under my command that because of my religious objection they are not going to fight either.”
As Klukowski explained in an interview with Religious Right radio host Eric Metaxas, Davis and her supporters are actually turning the First Amendment on its head:
Because under the Establishment Clause we do not have an official religion in this country, the First Amendment has never been construed as saying that whatever your personal beliefs are, that if you are in a position of authority, if your power is in fact a governmental power, the power of the state, that you have the right to make other civil servants, who have their own rights under the First Amendment, to make them act in conformity with your personal religious beliefs. Then you have the issue of, well, what are their religious beliefs? What are their personal beliefs? We’ve never adjudicated something of this nature, to my knowledge, and I’m pretty familiar with a large body of precedent in this subject area, where you’ve seen that kind of personal, individual liberty carry out to say that you can combine it with your governmental power to also make other public servants partake in your objection.
Davis is not only requiring other public officials bend to her whims, she is using the power of her public office to impress her personal beliefs on all residents of her county.
But that is what Davis and the Religious Right writ large want to do: turn the constitutional protection of religious freedom from a shield into a sword.
Who Defines God’s Law?
Giving governmental favor and priority to one group’s version of religious doctrine or, more specifically, one group’s interpretation of Christianity, has always been the principal goal of the Religious Right movement. These conservative Christian activists believe that the government is obligated to impose a certain set of religious beliefs on the country and, conveniently, the same conservative Christian activists get to decide what these beliefs are and define them for all Americans.
Ben Carson, the GOP presidential candidate, said as much when defending Davis during a Fox News interview. When asked if he would also support a Muslim county clerk who denied a marriage license to an interfaith couple citing religious objections, Carson suggested that he thought only Christians like Davis should receive such exemptions because “this is a Judeo-Christian nation.” (Religious Right activists regularly add “Judeo” to give their exclusionary agenda a veneer of pluralism).
At a rally in defense of Davis, Michael Peroutka, a Republican county official in Maryland and prominent Christian Reconstructionist activist, said he would make “the legal argument” on Davis’ behalf. Peroutka told the crowd:
Clerk Kim Davis has given all believers a lesson in faithfulness and perseverance. Now here’s the other point I want you to think about. Kim Davis is also giving the entire country a civics lesson. Because she knows what federal judges either don’t know or don’t care to recognize, and that is that God is the source and the author of law and government, and that any purported law that is not harmonious with His word can’t be law and is not law.
After declaring that any ruling that contradicts God’s law — or, at least, his view of God’s law — is no law at all, Peroutka went on to claim that Davis had “broken no law” since court rulings (as he sees it) do not have the weight of law and Kentucky’s legislature never dropped or rewrote its ban on gay marriage. “You don’t have to listen to the whim of a federal judge,” he said. “There is no law…. Kim Davis has no requirement set upon her to approve of state-sanctioned sin, there is no such requirement. Kim Davis is a law abider. She has acted lawfully.”
Peroutka is hardly a mainstream activist. Through his Institute on the Constitution, Peroutka advocates what he calls a “biblical view” of American law and government. For instance, he said that the Maryland General Assembly became an invalid lawmaking body after it passed a number of laws, including marriage equality, which he deemed to be contrary to biblical law and thus unconstitutional. Thanks to a successful debt-collection business, Peroutka has become a funder of Religious Right causes, including purchasing and donating a dinosaur skeleton to a creationist group that now uses it to claim that dinosaurs and humans roamed the earth together 6,000 years ago. Perhaps most controversially, Peroutka was once a board member of the League of the South, a racist, neo-Confederate group.
Yet Peroutka’s arguments in defense of Kim Davis sound little different from those being put forward by some Republican politicians.
Former Pennsylvania senator and current GOP presidential candidate Rick Santorum sounded a lot like Peroutka when he alleged that the Supreme Court’s “unjust” decision on marriage equality carried no legal authority because it violated higher principles: “I don’t think there is any question that the Supreme Court’s decision goes against the natural law. That’s not the way nature functions. So as a result of that, I think Kim Davis and everybody else has the obligation to oppose it.”
Huckabee similarly maintained that the court stepped outside of its authority when it tried to “unwrite the laws of nature and the laws of nature’s God,” arguing that Davis doesn’t have to follow any law she considers immoral: “You obey if it’s right.” He even said that Davis only has to follow the laws that were in effect at the time of her swearing in.
Huckabee argued that the court’s ruling was itself “illegal” and “unconstitutional” as “the Supreme Court can no more repeal the laws of nature and nature’s God on marriage than it can the law of gravity.” He said:
Even if the Supreme Court issues a ruling and says same-sex marriage is appropriate, it’s right, the Supreme Court is only the Supreme Court, they are not the supreme branch and they are most certainly not the Supreme Being. They cannot overrule God when it comes to the definition of what marriage is. They can no more redefine the purpose of marriage then they can redefine the laws of gravity and say that we can all go floating everywhere we go and don’t need to take cars anymore…. We cannot possibly survive if we defy any standard that God has given to us.
Davis’ attorneys at Liberty Counsel have similarly alleged that the court’s supposed violation of “moral law” means that the decision itself is invalid, and have used the same “laws of gravity” line as Huckabee. Her lawyer, Mat Staver, said that Davis’ oath of office requires her to “not act in contradiction to the moral law of God.”
The Alabama Example
Before there was Kim Davis, there was Roy Moore, the chief justice of the Alabama Supreme Court, whose radical understanding of the Constitution was strongly shaped by Peroutka, who has in turn been a major funder of Moore’s political projects and his most recent campaign for office.
As the Obergefell decision loomed, Moore created a national firestorm when he ordered probate judges in Alabama to defy a federal district court ruling that struck down the state’s ban on same-sex marriage.
Like Davis would months later, Moore said that the state must prioritize his personal understanding of divine law over the rulings of the courts.
Moore first received national attention in 2003 when he defied a court order to remove a Ten Commandments monument that he had installed in the state courthouse rotunda, a stance that led to his removal from the bench. But after unsuccessful campaigns for governor of Alabama and president of the United States and the founding of his own far-right legal group, the Foundation for Moral Law, Moore won back his seat on the state supreme court.
Moore urged Alabama authorities to flout the federal district court ruling striking down the state’s gay marriage ban and challenge the “rejection of God’s law by the federal judiciary.” (Unsurprisingly, Moore later praised Davis, likening her to people persecuted under Nazi rule).
“The laws of this state have always recognized the biblical admonition stated by our Lord” on marriage, Moore wrote in a letter to Gov. Robert Bentley. Such language is actually relatively moderate for Moore, who has alleged that gay marriage is a Satanic enterprise designed to attack America’s foundations and “destroy this country.” In a 2002 opinion on custody rights, Moore revealed insights into his thinking on the matter when he referred to homosexuality as a “criminal lifestyle” that is “abhorrent, immoral, detestable, a crime against nature, and a violation of the laws of nature and of nature’s God upon which this Nation and our laws are predicated.” Invoking Sodom and Gomorrah and Levitical law, he wrote that homosexuality is an “inherent evil.”
Moore told Fox News Sunday that the “power over marriage, which came from God under our organic law, is not to be redefined by the United States Supreme Court or any federal court.” A Virginia judge who opposed interracial marriage decades earlier expressed the same sentiment about a court usurping God’s authority, writing, “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.”
Many denominations don’t approve of remarriage for divorcees, marriage between people of different faiths or even marriage for people who have had premarital sex. And while these denominations are free to choose which couples they want to marry in their houses of worship, public officials like Moore and Davis cannot decide that everyone under their civil jurisdiction must bow to the rules of their personal faith.
Thomas Jefferson made clear in his writings that Christianity, like other philosophies or faiths, is “protected under the wings of the common law from the dominion of other sects, but not erected into dominion over them.” Jefferson, the father of the First Amendment’s religious liberty clauses, specifically clarified that “Christianity neither is, nor ever was a part of the common law,” attacking officials in countries like England who tried to use the coercive power of the state to impose religious teachings “intended by their benevolent author as obligatory only in foro concientiae” (“privately or morally rather than legally”). Or, as put much more simply in the Treaty of Tripoli, which was negotiated under George Washington and adopted under John Adams after it won unanimous approval from the U.S. Senate, “[T]he Government of the United States of America is not, in any sense, founded on the Christian religion.”
Letting States Trump the Constitution
Ordering judges to flout a federal court decision that was issued prior to Obergefell, Moore held that the state of Alabama was under no obligation to respect the federal courts on marriage. “We’ve got this federal intrusion into state sovereignty … occurring right under our nose and nobody is standing up,” Moore said. “Twenty-one states have bowed down to federal court orders when they didn’t have to.”
Huckabee similarly maintained that Davis had no obligation to follow the Obergefell decision since Kentucky hadn’t passed “enabling legislation.”
“States would be in a position where their legislatures would have to go into session — they would have to create legislation that the governor would sign,” Huckabee said. “If they don’t, then there is not same-sex marriage in that state. Now, if the federal courts say, ‘Well, you’re gonna have to do it,’ well, then you have a confrontation. At that point, somebody has to decide, ‘Is the court right?’ If it is, then the legislation will be passed.”
Carson also insisted that a state has no “responsibility to carry out a judicial law” unless its legislature actively changes state code that a court has found unconstitutional.
These arguments aren’t new. They were commonplace during Southern resistance to court rulings striking down segregationist laws.
Pat Buchanan admitted as much when he praised Davis by comparing her stand against marriage to his time in the Nixon administration when he “urged the president to defy court orders mandating court-ordered busing.”
One infamous conflict over whether states can ignore federal court rulings took place during Huckabee’s boyhood in his home state of Arkansas, when Gov. Orval Faubus claimed that the state was under no obligation to respect the Supreme Court’s decision in Brown v. Board of Education. Faubus ordered the state’s National Guard to support a mob of segregationists who were attempting to stop the integration of Little Rock Central High School in 1957, leading to a standoff with President Eisenhower, who sent federal troops from the 101st Airborne Division to escort nine African-American students into the school.
Berkeley Law Prof. Daniel A. Farber writes that by 1958, Faubus “declared that ‘the Supreme Court decision is not the law of the land.’ Unwilling or unable to resist these pressures, the board [of education] filed a request for a two-and-a-half-year delay in implementing desegregation. It was this request which ultimately led to the Supreme Court’s decision in Cooper v. Aaron.”
In Cooper v. Aaron, the Supreme Court held that it could not “countenance a claim” by state opponents of desegregation “that there is no duty on state officials to obey federal court orders resting on this Court’s considered interpretation of the United States Constitution,” adding:
The interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” No state legislator or executive or judicial officer can war against the Constitution without violating his solemn oath to support it.
In response, Faubus shut down all four public high schools in Little Rock, preventing students of all races from attending school for a full school year rather than allow the schools to be integrated.
Huckabee and others now claim, just as Faubus and segregationists claimed in the past, that states do not need to follow federal laws and court rulings that their leaders believe are unconstitutional.
Prof. Farber writes:
The Brown rule clearly prohibited continued de jure segregation and, as a part of federal law, was binding on the board [of education] regardless of state law. Thus, while the board members were free to criticize Brown, they could not lawfully continue de jure segregation. Similarly, Governor Faubus could speak out against Brown and take political positions contrary to the Supreme Court’s decision. When Governor Faubus ordered the National Guard to exclude black children, however, he directly violated the Brown rule by preventing blacks from attending a white school. No legal system could function if its rules were obeyed only after litigation; such conduct by individuals like Governor Faubus is essentially lawless.
Ironically, as the court noted in Cooper, this theory that state and local leaders can ignore binding decisions at their whim entirely ignores Article VI, Clause 2, of the Constitution, which states: “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”
These direct challenges to the Supremacy Clause are better known as interposition, or the power of state and local officials to declare that federal laws are unconstitutional, and nullification, or the idea that states can invalidate federal laws as they see fit. The theories of interposition and nullification were most widespread prior to the Civil War and during the era of resistance to federal civil rights laws. Now, the two beliefs are finding their way onto the GOP debate stage, as the Religious Right and the Tea Party resurrect anti-government principles once considered dead and defeated.
While champions of interposition and nullification frequently cite James Madison as their progenitor, the actual honor belongs to South Carolina’s John C. Calhoun. In fact, Madison explicitly rejected Calhoun’s efforts. Calhoun wanted to create a state veto through nullification, a principle which, along with interposition, was never given any credence by the federal courts. Madison reacted by writing, “Nullification has the effect of putting powder under the Constitution and Union, and a match in the hand of every party to blow them up at pleasure.”
Madison’s analogy that nullification gives certain parties the ability to “blow up” the Constitution “at pleasure” could be used just as easily, nearly two centuries later, to describe the efforts of Davis, Moore and their allies. Rather than working within the constitutional system to revise laws or pass new ones, amend the Constitution or use the court system to challenge perceived injustices and fight for changes, these public officials argue that they can simply unilaterally declare that their personal opinion or religious belief reigns supreme.
Unsurprisingly, this challenge to constitutional authority comes often from the very politicians who boast that they are the greatest experts on and strictest adherents to the Constitution.
The Kim Davis saga has clearly exposed the hypocrisy of the Religious Right’s claim to be a persecuted minority. They have not lost their religious liberty. Instead, they are trying to exploit the Constitution’s religious liberty protections to deny to others their rights under the law.