“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” — First Amendment, U.S. Constitution
Kim Davis, county clerk of Rowan County, Kentucky, refused to issue marriage licenses to competent, legally eligible, same-sex couples. Is her action an example of the exercise of the constitutionally protected right to the free exercise of religion as expressed in our constitution?
As an elected official of Rowan County, Kentucky, the sole responsibility of Kim Davis in this matter as a government officer is to testify that the two people presenting themselves for a marriage license meet all the requirements of the law. In so doing, she is neither affirming nor denying the morality, the religious validity, or cultural value of the marriage at issue—only that the marriage is legal in our society.
If, as Kim Davis maintains, the issuing of the marriage license violates her conscience, then she is free to withdraw from the process and, in the authentic tradition of civil disobedience, face the consequences of that withdrawal whatever they might be. However, Davis pushed her individual conscientious objection much further: she made accomplices of others. She forbade her deputy clerks to issue marriage licenses because these certificates carried her name on them as the county clerk. This imposition of her conscience and her religious beliefs upon her deputies vitiated the moral authority of her own civil disobedience by seriously compromising the ability of her deputy clerks to either follow the law or to follow their own individual consciences.
The agreement that freed Davis from jail and permitted her deputies to issue marriage licenses replaces her name with the phrase “pursuant to federal court order.” These licenses are now being challenged as illegal by some groups because they do not bear the name of the county clerk “Kim Davis” on them.
Were Kim Davis the officer in charge of issuing driver’s licenses and were she a Muslim who interprets God’s will to mean that women are not permitted to drive and accordingly refused to issue drivers licenses to women, would she be receiving the support of Christian fundamentalists or of those judging her stand to be a matter of “religious liberty?”
Tale of two secular nation-states: Liberty and religion in France and USA
Following the legal traditions established by the 1789 ‘Rights of Man and of the Citizen’ and the laicization law of 1905, the French Constitution of 1958 establishes the absolute secular status of the state. This status is not a passive one: the state trumps any religious practice that it judges inimical to public order or safety. “No one may be disturbed on account of his opinions, even religious ones, as long as the manifestation of such opinions does not interfere with the established Law and Order.” [Article 10, Rights of Man. Cfr: www.pewforum.org/2005/12/09/100th-anniversary-of-secularism-in-france/ ]
To cite one dramatic example: Rightly or wrongly, French law currently forbids the public display of any type of religious artifact such as the visible wearing of a Christian cross or a Star of David or a burka in a public secular space controlled by the state such as a court room or a public school. France actively promotes its secularity.
Our legal and cultural traditions regarding the function of religion in our secular society follow a different path from that of France. We actively try to accommodate the religious practice. We intervene only when we judge that the practice contradicts an essential element in the public welfare. One dramatic example: We forbid the practice of polygamy to the Mormons.
The question arises, therefore, as to what are the criteria for determining when a religious practice harms the common good. And, who decides? This process is a political process, such as it was in the case of polygamy. Ultimately, however, our Supreme Court makes the final decision.
The French way pursues an aggressive enforcement of secularity in the public sphere judged sacred to the state. Our way is to actively accommodate religious practices insofar as these practices do not compromise fundamental values that apply to all our citizens.
By refusing to allow her name to be on the marriage licenses, Kim Davis, is, in effect, still refusing to comply with the law. She is also creating a legal situation in which the validity of these federal court-ordered marriage licenses can be challenged in each state of our union as not duly processed by the county clerk.
It is a sad comment on our civil society and on our legal system that we have allowed, in fact empowered, one person to hold hostage our fellow citizens in the name of religion.
07 October 2015 WCTimes
Nick Patricca is professor emeritus at Loyola University Chicago, president of Chicago Network and playwright emeritus at Victory Gardens Theater.