So a judge was left with an unpalatable choice: allow Kim Davis to defy the law with impunity, or throw her in jail for contempt of court.
The judge made absolutely the right choice, much as I rue the necessity. Rule of law is one of the most important things between us and barbarianism. No, it is never perfect, but it is better than the alternative. It has to be preserved no matter which side is the target. Conservatives who applauded the Hobby Lobby decision and now applaud Kim Davis should take a long, hard think about how they’d feel if President Obama took a bold stand for freedom of conscience by slapping Hobby Lobby with fines in open defiance of the Supreme Court. If you think that only the other side has to obey laws they don’t like, then you are not in favor of the rule of law. You are in favor of law as a crude tool for the raw exercise of power — and when you are in a minority, as the opponents of gay marriage are, then you should carefully consider where this is likely to end up.
Yes, this, a thousand times.
The response will be the Augustinian maxim: “An unjust law is no law at all.” This principle was invoked in a powerful way in our time, in Martin Luther King’s “Letter from a Birmingham Jail”:
You express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. Since we so diligently urge people to obey the Supreme Court’s decision of 1954 outlawing segregation in the public schools, it is rather strange and paradoxical to find us consciously breaking laws. One may well ask, “How can you advocate breaking some laws and obeying others?” The answer is found in the fact that there are two types of laws: there are just laws, and there are unjust laws. I would agree with St. Augustine that “An unjust law is no law at all.”
Now, what is the difference between the two? How does one determine when a law is just or unjust? A just law is a man-made code that squares with the moral law, or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas, an unjust law is a human law that is not rooted in eternal and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust.
By that standard, to most orthodox Christians, laws permitting same-sex marriage both contradict the moral law and degrade the human personality, and are therefore unjust.
But are people who believe a law is unjust therefore obliged to resist it at all times and in every place? How would that be possible? This is where the virtue of prudence comes in. Prudence — that is, the discerning application of reason — helps us determine when we must take a stand, and when we may dissent in our hearts, but hold our fire, so to speak, in public.
Prudence tells us that if we are going to defy civil or criminal statutes for the sake of the moral law, we had better have a very serious reason. As McArdle avers, once you step outside the rule of law (meaning the positive law, or man-made law), you have done something radical, something that challenges the constitutional order at its root. There may be good reason to do this, but such an act is so morally serious that it must not be undertaken lightly, or without deliberation. It’s clear that there are many Christians who support Kim Davis because she’s doing something, even if that something is arguably counterproductive. This is unwise.
Russell Moore and Andrew T. Walker of the Southern Baptist Convention’s Ethics and Religious Liberty Commission have a column out ripping the Supreme Court, the Kentucky governor, and the federal judge in the Kim Davis case, but the piece also makes a very important point about religious liberty and prudential judgment:
[W]e must recognize the crucial difference between the religious liberty claims of private citizens and government officials. Let us be clear: Government employees are entitled to religious liberty, but religious liberty is never an absolute claim, especially when it comes to discharging duties that the office in question requires. While government employees don’t lose their constitutional protection simply because they work for the government, an individual whose office requires them to uphold or execute the law is a separate matter than the private citizen whose conscience is infringed upon as a result of the law. It means the balancingtest is different when it comes to government officials because of their roles as agents of the state. Government officials have a responsibility to carry out the law. When an official can no longer execute the laws in question due to an assault on conscience, and after all accommodating measures have been exhausted, he or she could work for change as a private citizen, engaging the democratic process in hopes of changing the questionable law.
We must be very clear about the distinctions here between persons acting as an agent of the state and persons being coerced by the state in their private lives. If the definition becomes so murky that we cannot differentiate between the freedom to exercise one’s religion and the responsibility of agents of the state to carry out the law, religious liberty itself will be imperiled.
I can’t make the point more strongly or clearly than these Southern Baptists — both conservatives — have done here. If the public comes to think of religious liberty as the constitutionally guaranteed right to ignore the Constitution whenever it suits us, the cause of religious liberty — which is guaranteed by the First Amendment — is going to suffer tremendously.
Conservatives are supposed to understand the difference between the vice of cowardice and the virtue of prudence. If religious liberty means that even officers of the state can defy the law without consequence, then it makes every individual a potential tyrant. The Kentucky Pentecostal county clerk who refuses the gay couple a marriage permit in principle legitimizes the California Episcopalian county clerk who refuses to record marriages performed by ministers of churches that don’t marry same-sex couples.
Is this really what orthodox Christians want? You had better think hard about it, because we are on the losing side of the same-sex marriage question, and on gay rights in general. Louisiana is one of the most socially conservative states in the country, but a generation from now, gay marriage will be the majority opinion even here. Look at these results from a 2015 poll conducted by Louisiana State University researchers:
I’m not saying I like this set of circumstances. I most assuredly do not. But this is the world we orthodox Christians live in now, and are going to have to live in. We are not the majority, and are in fact going to be an increasingly demonized and despised minority. We have to pick our battles carefully.