Tuesday, September 01, 2015

Same-Sex Marriage in Kentucky

SCOTUS has rejected without comment (unfortunately) an appeal by a Kentucky county clerk to impose a stay on a lower court order that she must issue same-sex marriage licenses against her religious convictions.

I say SCOTUS’ refusal to comment is unfortunate because it is a coward’s way out. They have smiled on the imposition of a religious test for public office with nary a word.

“A religious test,” you say? Yes, a religious test. As it now stands by judicial fiat, persons of religious conviction may not hold a county clerk’s position in the state of Kentucky. They are now required to abandon their religion at the door of the office, which means effectively, that they can have no religious convictions (since a conviction, by definition, cannot be left temporarily; it can only be compromised). If you can abandon your religious conviction when you go to work, you don’t have a religious conviction. You have a preference.

The solution to this situation is simple. SCOTUS should have reversed its earlier embarrassment and rejected same-sex marriage. This should have been done for the preservation of culture and families.

An even simpler solution would be for the couple to travel twenty-two miles—yes, only twenty-two miles—to the next county where they could easily get a marriage license without attempting to force a citizen to violate their religious convictions.

But they didn’t. They chose a road of national exposure, legal bills, and frustration.

One of the parties says, “I feel sad, I feel devastated. … I feel like I've been humiliated on such a national level, I can't even comprehend it."

Yet the humiliation is his alone. And it’s hard to imagine that someone living in Kentucky cannot comprehend that there are people with convictions about marriage and family.

To avoid humiliation, he could have driven a short distance and easily gotten the license months ago. He could have already “married” his partner and been done with it, and no one would have ever known.

How do I know this? Someone real quick tell me anyone who has gotten a marriage license in a neighboring county in the last two months.


You probably don’t know a single person. And you would have never known this person had he simply done that.

But instead, he chose to make himself a national spectacle. And now, he must accept the consequences of that.

But there’s a bigger problem. He is humiliated about the wrong thing. He should be humiliated for being in a same-sex relationship violating what he knows to be true. He should be humiliated for his ignorance that rejects the Creator’s plan for life. He should be humiliated for living life the way he is living. He should be humiliated for making it public.

Instead, he confirms the truth of Romans 1. Though he knows God, he rejects that knowledge. Therefore, he has been given over and is now demonstrating a hardness of heart that has led him to make a spectacle of himself in front of a whole nation.

Not only that, he takes pleasure in the things of which he should be ashamed. Knowing, and yet ignoring, that those who live this way (among other ways) are worthy of death, he not only does it, he gives hearty approval to those who do it along with him (Romans 1:32).

And he tries to force his religious convictions on others who disagree, all the while begging for tolerance for himself.

What should this Kentucky clerk do?

Some are calling on her to resign, saying she shouldn’t hold office unless she can do what the office requires. There are several problems with this.

First, it amounts (as I already pointed out) to a religious test for office. She is being told she cannot hold her religious convictions and also do her job. And yet there is no good reason for this. Marriage licenses are a small part of her job, and those could be easily issued in a neighboring country.

Second, it amounts to an override of the vote of the people. The people of this county elected her to this position. The radical homosexual lobby has no right to try to negate that vote. At the next election, they may throw all their resources at the ballot box and try to remove her by the legal means—namely, electing someone else. To force her out of office for being a Christian is a tragic denial of democracy.

Third, she could easily do the job she was elected to do. The job requirements changed by judicial fiat after she took the job. She should not be held liable for a job she did not sign up for.

Fourth, the problem is easily remedied by other counties who will do exactly what this couple wants. Which confirms the point that they don’t want a marriage license; they want an issue. The marriage license would have been easy to come by. If that was their desire, it would have been long ago done.

In this day and age, individual Christians must decide on their convictions (as opposed to their preferences). For better or worse, the pressure is now coming from outside our own hearts to decide what we believe.

What would I do if I were a county clerk in Kentucky? I have no idea. But I am firmly convinced that judges have no right to demand her to do this.

What should we as Christians do? We should love people. When we have encounters with those who differ with us on same-sex marriage, we must love them with gospel love, showing them the way of the Creator both for life and eternity.

We should look on them with pity, because there is a great Savior who looked on us with pity and loved us and saved us in spite of ourselves.

We should minister to them with hope, knowing that God is bigger than sin and eternity is longer than life.


Bill Combs said...

"What would I do if I were a county clerk in Kentucky? I have no idea."

But that's the question and we should be able to give her an answer. Should she defy the government and take the consequences? Is that the biblical thing to do?

Larry said...

I think it's a matter of conscience in which I can give advice but not mandate her to do something. She has to be convinced in her own mind what obedience to God requires. Not being the one in the position, it would be easy to say "This is what should be done," but I may not know enough to know what the issues are.

I think she can pursue all legal options, and in the end, I am inclined to say resign in protest. But I don't like the idea that a religious test for public office has been effectively instituted and that again the rights of conscience are denied when there is an easy solution available. I think it sets a bad precedent.

d4v34x said...

I don't think your religious test assertion succeeds. Unless you believe that there is already a religious test for the office of President since a Quaker (or the like) could not in good conscience be Commander-in-Chief.

Larry said...

You said the key word, Dave, that he is prevented by conscience. It isn't something that comes from the government. It is something that comes from within himself or herself. In that case, said Quaker is perfectly legal to go and make his case as to why his view is better, and if he can get enough votes, so be it.

Bill Combs said...

I think this is a fairly easy one, if I understand the facts correctly. She is not being given a religious test for office. She is perfectly free to hold her view that gay marriage is wrong. She is not being forced to violate her conscience. She is not being forced to marry anyone or grant anyone the authority to get married. The key point is that she is a clerk. She has no authority to grant marriage licenses. We may use that language, but she is granting nothing. The authority is the law. The law now grants gays the right to marry. She is just a clerk. Clerks just check paperwork. If a person has followed the proper procedures, she simply signs off and says they have fulfilled the requirements of the law.

An example might help. Many Christians believe that divorce and remarriage are nor allowed by Scripture. This clerk may well hold that view herself. Should she be able to refuse to issue a marriage license to divorced people? My guess is that even if she held such a view and believed divorce and remarriage were wrong, she would not feel she was violating her conscience by issuing such people a marriage license.

Her problem is that she thinks her job as clerk gives her some sort of authority to "grant" the right for people to marry. She has no such authority. She is just a "clerk," who checks paperwork to see if it conforms to the legal requirements.

Someone should explain to her that this is not a matter of conscience. If she can't see it, she should resign.

d4v34x said...

Larry, its the same in both cases. The Constitution, our first law, essentially mandates that the president must commit troops to kill and be killed if certain circumstances arise. The one difference is that the "certain circumstances" under which the clerk must act have changed during her tenure of office. Which is admittedly tough.

But brother Combs has made it as clear as need be, so I'll desist. Be well.

Larry said...

I don't think it's quite that easy.

If a person cannot maintain their religious convictions and maintain their job, how is that not a religious test for the job? She is being told either give up your religious convictions or give up your job. (And now she has been jailed for it, which was certainly not the least restrictive means of accomplishing the task.) And for public office, religious tests are specifically proscribed in the Constitution, which is mostly meaningless these days. Here it's not a formal test, but it is a de facto test in some cases. The kicker here, IMO, is that the law changed (without actually changing the law) after she was in office. So what she was elected to do is not what she is now being forced to do. If running for office, she should be clear that she can't do the job, and the voters vote accordingly.

All in all, I think she is giving a bad name to Christians. Of course, having four marriages might make her some sort of expert on marriage, if not Christianity. But I don't like the idea that certain religious views can be excluded from public office, particularly when there is a "less restrictive means" (the usual legal term, I believe) for accomplishing the end.

As for conscience, isn't the point of conscience that it is personal? No one can tell you what your conscience must be, though people can tell you what it should be. Someone can explain to her that this is not a matter of conscience, but that doesn't make it so for her. Her conscience may be badly trained, but it is still conscience and she shouldn't sin against it.

The difference with divorce and remarriage is that a remarriage after a divorce is an actual marriage. A same sex marriage is not a marriage. That was the argument some tried for the cake/florist/photog thing about remarriage. But the answer is the same. It is comparing apples and oranges to compare a marriage to a non-marriage in the eyes of the one having the conscience.

It's not just about checking paperwork either. She believes that her name being on the certificate implies her approval of it, and she cannot in good conscience grant that.

The least restrictive means is to remove her name from the license thus removing her objection or to send the couple to another county.

Personally, I don't think I would die on this hill. While I disagree with Wilson's views of government and culture, his article on painting with bright yellows this week rightly emphasized that we can't keep saying there are hills to die on and then not dying on any hills.

I actually have no problem with her saying, Remove me. (I have no problem with resigning either.) But if we keep going away and shutting up, pretty soon we are all gone and quiet.

Larry said...

Dave, in your example, he is prevented by his own conscience. And the requirement for defense may not necessarily involve committing troops to kill and be killed. So I don't think that is a valid comparison to this.

Bill Combs said...

"If a person cannot maintain their religious convictions and maintain their job, how is that not a religious test for the job?"

She can maintain her religious convictions and maintain her job. She is free to believe that gay marriage is wrong.

"how is that not a religious test for the job?"

Larry, I think you misunderstand the whole history of religious test for an office. Historically, it came about to make sure one could not be denied an office because of their particular religion. It goes back to religious tests for office in England. The religious test in the Constitution is tied to the requirement that the office holder carry out their Constitutional duty. The religious test in the Constitution was never intended to give a person the right to assert their own religious convictions over their responsibiltiy to carry out their Constitutional duty. Your interpretation turns the the whole principle on its head. She is asserting her right to not carry out her office based on a religious conviction. Such an idea would render havoc with the Constitution and the laws of the land. Can she assert a religious conviction not to issue a license to divorced people? Can she assert a religious conviction not to issue a license to people of mixed race? Plenty of Christians in our own country have argued that it is unbiblical for people of mixed race to marry.

"She believes that her name being on the certificate implies her approval of it, and she cannot in good conscience grant that."

She can believe what she wants but she is simply wrong that putting her name on the certificate implies her approval of it. No one is asking for her approval of gay marriage or any marriage. She has no authority to approve or disapprove a marriage. She is not a judge. She is only a clerk who certifies that the persons involved have met the requirement of the law.

I understand she imagines she is giving her approval to gay marriage, but she misunderstands the limits of her own office.
If she were a judge who was ordered by a higher court to perform a gay wedding, then okay, now we have genuine question of conscience. But that would still have nothing to do with the religious test for office. The religious test for office does not give anyone the right to refuse to carry out their Constitutional duties because of some religious conviction.

Larry said...

There has been a lot of good writing done on this in the last few days (and a lot of other writing as well). Here's a quick response.

1. Her conviction is not just that gay marriage is wrong; it is that her name on the license is her approval of it. She cannot hold that conviction and maintain her job. She may be wrong, but again, the whole point of conscience is that it belongs to an individual and they must not sin against it lest they damage it. The government has no right to coerce her to act against her conscience. The government must make reasonable accommodation which they have not done. Balancing that can be hard at times (although this one is really easy), which is why there are judicial tests to protect it. There are ways to protect her conscience while also getting the license but they were rejected.

2. I understand the religious test. Remember, I said it wasn't an actual test, but a de facto test. She is being told that she must leave her religious convictions at the door of public office, even though there is a less restrictive means of the government accomplishing its end. That's why it doesn't wreak havoc. There are other means by which this ruling can be held up without this action being taken. A religious conviction cannot be left at the office door. Otherwise, it's not a conviction. Under the constitution, the government is bound to preserve her right to live by her convictions and seek other reasonable ways to accomplish its ends. In the end, I am not (yet at least) persuaded that this is not a de facto religious test by the government. I think it qualifies under the Constitution, providing that the Constitution is upheld. In this case, it would be. This clerk is not trying to get all marriage licenses in all places restricted. She is not even trying to get all marriage licenses in her county refused. She wants to avoid having her name on it. So the Constitution can be upheld (in its current ruling) by either (1) sending the couple somewhere else or (2) removing her name from the license. If the voters use a candidate's religion against them, so be it. But if the government says that if a candidate's religious views preclude them from supporting some issue and that therefore they may not run for, or at least occupy, certain offices of government, how is that not a de facto religious test? I think that is a problem, the very problem that the original idea sought to preclude, that of a particular belief being excluded from public life.

3. At what point do Christian citizens actually be Christian citizens? You bring up interracial marriages, and it brings to mind those who claimed that segregation was just following the law of the land. Or the bus driver who tried to force Rosa Parks to the back of the bus because they were just following the law of the land. All manner of wrong has been justified by "it's the law and we have to uphold it." Civil disobedience played a part in how it was resolved. This idea that "it's the law, so do it and check your conscience" plays into the hands of those who want to equate same-sex marriage with racial segregation.

If people of moral values (Christian or not) keep rolling over every time they are told to, eventually there is nothing left. I believe that at some point, someone has to do something of courage. Somewhere there is a hill to die one, proverbially speaking.

Our role as citizens should matter. Segregation was not overturned because people just resigned themselves and went on about their business. It was overturned because people took stands and some of them suffered until society caught up. It may not work here and my hope is not in government to be sure. But rolling over on command is hardly the answer. She has called attention to this and put the pressure on government where it would not have been otherwise. And perhaps by doing so, she gives some courage to others to do so and calls attention to the problem.

Bill Combs said...

I agree with much of what you say, Larry. I am focused on the more narrow point of how we are to understand Acts 4:19 and 5:29. I understand these texts to mean that we must obey the government unless they try to force us personally to sin. So we cannot legitimately block access to an abortion clinic because someone is getting a legal abortion. Their sin of getting an abortion is not causing me personally to sin. I think the principle here is that we can only disobey the government if we have a clear command from God to the contrary, as the apostles did in Acts. I have doubts about raising questions of conscience to this level of clear commands. People can raise questions of conscience about things that are fairly clearly not really sinful. So I wonder if we should be careful about letting anyone raise any question of conscience and claim Acts 5:29. As I stated, I think the clerk does not really have a question of conscience and someone should help her see this. Paul allowed for questions of conscience about meat (Rom 14), but I don't think that means he would no have tried to help that person see their interpretation of Scripture is incorrect and meat is not sinful.

I agree that this is not the standard of the Law and that Title VII allows people to raise questions of religious conscience and reasonable acomodation should be made. I agree that she is being treated unfairly. But that is not the issue I am focusing on.

Bill Combs said...

Some good points are made over a Powerline:

Larry said...

I think one problem with the article is that it gets it wrong. Marriage licenses in Kentucky have nothing to do with the county they are issued in. Marriage licenses are good anywhere in Kentucky. So when he says that "Gay couples will have to be married in another jurisdiction," he is simply incorrect. With a license from any Kentucky county, they can get married anywhere in Kentucky. So they could get a license somewhere else, and get married on the door step of her office, and she couldn't do anything about it. Her objection is to her name being on the license. Again, she may be wrong about the significance of that, but that is her conscience.

However, the article does point out how easily this can be resolved in one of at least four ways: "creating an “opt-out exemption” in the marriage license process, deputizing a neighboring county clerk, taking Davis’ name off of marriage licenses, and having the state distribute the licenses." All of these were suggested and rejected. This is something that a simple vote of the legislature could have handled. Plus, she is protected under the Kentucky RFRA apparently.

Why insist someone violate their conscience rather than simply take one of these four easy steps? Not to mention a fifth easy step of going to another county to get the license.

In the end, I am still not persuaded that this is a matter that should require the denial of religious conscience to a citizen. I think attempting to coerce a publicly elected official to violate their conscience when there is a less restrictive means of achieving the same outcome is both wrong constitutionally and dangerous for the future.

I continue to think this is very simple issue that could be easily resolved to the satisfaction of all reasonable parties, and these couples could have been married a long time ago if that was what they wanted. I of the view that these are not reasonable parties. The gay marriage movement is on a crusade. They don't want a reasonable solution that protects those who disagree with them. So they chose a different course, making a federal case out of it.

Again, whether or not Kim Davis is right as a Christian, I think she is certainly right as a citizen. I am glad to see her not roll over on this.