Sep 5th 2015

No Refuge in Scripture or In Law: Why Kim Davis Must Do Her Job, Resign, or Remain In Jail

by Charles J. Reid, Jr.

Charles J. Reid, Jr. was born in Milwaukee, Wisconsin. He graduated from the University of Wisconsin-Milwaukee, where he majored in Latin, Classics, and History, and also did substantial coursework in classical Greek and modern European languages. It was during his undergraduate days that he developed an interest in canon law, doing a year of directed research in Roman and canon law under the supervision of James Brundage. Reid then attended the Catholic University of America, where he earned J.D. and J.C.L. (license in canon law) degrees. During his time at Catholic University, he organized a series of symposia on the bishops' pastoral letter on nuclear arms. The proceedings of these symposia were published under Reid's editorship as "Peace in a Nuclear Age: The Bishops' Pastoral Letter in Perspective" (Catholic University of America Press, 1986). This book was called by the New York Times "among the most scholarly and unsettling of responses" to the pastoral letter (December 28, 1986).Reid then attended Cornell University, where he earned a Ph.D. in the history of medieval law under the supervision of Brian Tierney. His thesis at Cornell was on the Christian, medieval origins of the western concept of individual rights. Over the last ten years, he has published a number of articles on the history of western rights thought, and is currently completing work on a book manuscript addressing this question.In 1991, Reid was appointed research associate in law and history at the Emory University School of Law, where he has worked closely with Harold Berman on the history of western law. He collaborated with Professor Berman on articles on the Lutheran legal science of the sixteenth century, the English legal science of the seventeenth century, and the flawed premises of Max Weber's legal historiography.While at Emory, Reid has also pursued a research agenda involving scholarship on the history of western notions of individual rights; the history of liberty of conscience in America; and the natural-law foundations of the jurisprudence of Judge John Noonan. He has also published articles on various aspects of the history of the English common law. He has had the chance to apply legal history in a forensic setting, serving as an expert witness in litigation involving the religious significance of Christian burial. Additionally, Reid has taught a seminar on the contribution of medieval canon law to the shaping of western constitutionalism.  Recently, Reid has become a featured blogger at the Huffington Post on current issues where religion, law and politics intersect.

Kim Davis, the Rowan County, Kentucky, clerk who refuses to issue marriage licenses to gay couples, claims to be a Christian. I shall take her at her word. And taking her at her word, I believe that her position lacks both biblical and constitutional merit. She should either do her job or resign. Failing that, she should remain in jail until she chooses one of the first two options.

Let's look at the biblical case first. As a Christian, Kim Davis should know that there are three great New Testament texts that speak about the believer's relationship to the state. These include:

Matthew 20: 20-22. Here, Jesus was confronted by Pharisees looking to entrap him by asking whether it is lawful to pay taxes to Caesar. Jesus asked them to show him the coin used in tribute to the state and inquired whose image was on it. "Caesar's," came the reply. And Jesus answered: "Render therefore to Caesar the things that are Caesar's and to God the things that are God's."

Acts 5: 29. In the Acts of the Apostles, one finds Peter and the Apostles brought before the high priest on criminal charges. They had been commanded not to preach in Jesus' name and had already been imprisoned once for this offense. They had now re-offended. Peter, speaking for the others, explained to the high priest and the Sanhedrin: "We must obey God rather than man."

Romans 13: 1. Finally, in Romans, chapter thirteen, one encounters Paul writing to the followers of Jesus in the capital city. He admonished them: "Let every person be subject to the governing authorities. For there is no authority except from God, and those that exist have been instituted by God."

Let's consider how each of these texts fits Kim Davis's situation. The unspoken premise of Jesus' instruction to render unto Caesar what is Caesar's is that the believer is not in Caesar's employ. Rather, Jesus was speaking to the problem the believer in private life confronts in balancing loyalty to the state and fidelity to God's word. Yes, Jesus seemed to say, the state will demand certain things of you, and you should give the state what properly belongs to it. Jesus added to the ambiguity of the passage, furthermore, by never precisely defining the content of these two spheres.

Even though Jesus did not address the problems a believer in public life might face, it is possible to extend his logic to conclude that such a believer should either perform the duties of state or resign. Interestingly, there are a number of passages in the Gospels where Jesus interacted with representatives and agents of the state -- centurions, tax collectors -- and nowhere did he tell them to disobey their superiors.

Peter, in Acts, confronted a different set of circumstances. He and the Apostles were repeat offenders and found themselves in legal peril. Peter's dilemma was that he -- and the other Apostles -- were being compelled to disobey one of Jesus' principal commandments. Jesus had ordered his followers to preach to all nations, and Peter would betray this instruction from the Lord if he remained silent. Thus he informed the high priest and the Sanhedrin that he could not act otherwise than he was doing. They might have been put to death had it not been for the timely intervention of Gamaliel, who encouraged the gathered assembly to beat them and then release them.

This is not Kim Davis's situation. The state has not put her to a choice: Obey God's law or man's. She voluntarily sought elective office under the Constitution and the laws of the Commonwealth of Kentucky. No one forced her to run for office. No one is compelling her to remain in office. If she truly believes that she cannot reconcile her responsibilities as an elected official with her interpretation of the Bible, then she is duty-bound to resign from office.

And finally there is Paul's letter to the Romans. We do not know what motivated Paul to instruct Jesus' followers that they must strictly obey the civil authorities. It is possible, perhaps even likely, that Paul was responding to a community that had already experienced unfortunate encounters with state authority. Paul now wished to communicate his desire that they should submit to the prevailing authority of the state. And so he continued: "Therefore he who resists the authorities resists what God has appointed, and those who resist will incur judgment." (Romans 13: 2).

Like the first two texts, Kim Davis can find no refuge for her defiance in this passage. After all, she is among the governing authorities herself. But her position is nevertheless subordinate to the laws of the land. As an office-holder, she is duty-bound to obey the Constitution and the federal courts. And as a Christian, Paul might be read as saying, she is similarly bound to enforce the law or else stand down from office.

Yes, I know that Davis will counter with the argument that she is being compelled to obey and enforce an unjust law. And the response is simple: No, she is not. No one is compelling her to remain in office. Her salary is paid by the taxpayers, and the taxpayers are entitled to what is lawfully theirs -- marriage licenses and a functioning clerk's office. She should perform her official duties or get out of the way.

And if her biblical case is weak, her so-called religious liberty claim is non-existent. The First Amendment to the Constitution is the source of the American commitment to religious freedom. Historically, this provision has been used to vindicate the rights of religious minorities where they have been targeted for oppression by the state. Thus Jehovah's Witnesses were exempted from saluting the flag, the Amish were exempted from compulsory school-attendance laws, and the followers of Santeria were protected from discriminatory treatment in the practice of their faith.

The free-exercise clause, in other words, was never intended nor interpreted to protect the free-exercise rights of elected office-holders. Indeed, the very proposition is a logical absurdity. Why? Just think about it. By virtue of their elected office, public officials are charged with the duty of executing faithfully the laws of the United States. Their responsibility is to the state and the state's laws. It is not their job to pick and choose which laws they will and will not enforce based on their privately-held beliefs. Once again, where they cannot discharge their public duties, their obligation is to resign.

Kim Davis is in jail for contempt of court. There is an old saying in equity jurisprudence that someone jailed for contempt holds the keys to her cell in her own hands. That is certainly true for Kim Davis. Her refusal to perform her duties lacks biblical and constitutional merit. She should resign from office, or suffer the just and fitting consequences.

 


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