Civil Disobedience

In some people’s eyes, Kim Davis is simply following a great American tradition of civil disobedience. After all, Henry David Thoreau refused to pay his poll tax on the grounds that the government supported slavery and was engaged in an unjust war with Mexico. He was arrested and jailed, in late July of 1846. He memorialized the incident in his essay "On the Duty of Civil Disobedience" in 1849. But his Aunt Mary paid the tax, against his will, causing him to be released after a single night. Still, the essay is an American classic.

Davis objects to the Supreme Court ruling that gay and lesbian marriages must be recognized and refuses to execute marriage licenses to gays in her Kentucky county. According to Thoreau, we have a duty to opposed government actions when we have grounds to believe they are illegal, inappropriate, or otherwise unconscionable. But part of that duty is to accept the consequences of disobedience — namely, arrest, prosecution, and perhaps fines or jail time. The object of civil disobedience is precisely to carry the issue into the courts through one’s own case with the hope that the courts may intervene and correct a government action. Thoreau hoped his case would force the people of Massachusetts to examine slavery and the Mexican War, though it never went that far. Davis has been freed to a crowd of vocal supporters but she may go back to jail if she continues to prevent marriages license to go to gays and lesbians.

The question is whether Davis’s “civil disobedience” is appropriate. In this case, the highest court of the land has already decided the issue so there is no path through the court system for Davis to pursue her case. But it also seems inappropriate in another sense. Most civil disobedience in this country has been motivated by the desire to grant rights and freedoms to underdogs, citizens on whom government has turned its back. The historic movement of civil disobedience in the South in the ’60s was an attempt to bring the nation’s consciousness to see how Blacks were treated under segregation and to secure their civil rights as Americans. But Davis’s issue with the government is morally reversed; she wishes to deny rights to a certain class of people. As someone has observed, Davis is more nearly kin to George Wallace than to Martin Luther King, Jr.

Here we go again on the First Amendment

Kim Davis, a county clerk in Kentucky who prides herself as a Christian, insists that she can refuse to issue marriage licenses to gay or lesbian couples on the basis of her own religious beliefs. Yes, the First Amendment does provide that every citizen can freely pursue his or her own religious beliefs and practices. However, when a person becomes a public official and acts for the public, he or she must act in the public spirit and is no longer free to act in the mode of a private citizen. I presume that Kim Davis took some kind of oath of office in which she actually promised to do that. The First Amendment also prohibits the formation of a state religion, which means that the public spirit is secular. As a public servant, Davis has no right to impose her private religious beliefs on those that she serves. 

Actually, the relationship between these two aspects of the First Amendment is intimate and essential. "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." If Congress had the right to establish a state religion, then individuals would not have the right to freely exercise the religion of their own choice. In other words, the public spirit is secular precisely so that individuals like Kim Davis can hold their own private beliefs. If public servants like Davis are free to exercise their private religious beliefs in office then citizens are interfered with in the free exercise of their private beliefs.

We would all be outraged if we elected a president who was Catholic and who then proceeded to consult the Pope on all matters of state policy. What’s the difference? Or what about a Muslim county clerk who refuses to issues driving licenses to women?

What is amazing to me is the pile up of Republican presidential candidates who are now eager to defend Davis and who, in the process, are showing their complete ignorance of the Constitution as well as demonstrating their complete lack of respect for the Supreme Court.