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A Religious Test for Public Office

There are more important -- and more dangerous -- cases than Kim Davis's

We have been talking in this space for the past few days about religious liberty fights worth committing to. This Oregon case is a big one:

Marion County Judge Vance Day is being investigated by a judicial fitness commission in part over his refusal to perform same-sex marriages on religious grounds, a spokesman for the judge said.

When a federal court ruling in May 2014 made same-sex marriage legal in Oregon, Day instructed his staff to refer same-sex couples looking to marry to other judges, spokesman Patrick Korten said Friday.

Last fall, he decided to stop performing weddings altogether, aside from one in March that had long been scheduled, Korten said.

“He made a decision nearly a year ago to stop doing weddings altogether, and the principal factor that he weighed was the pressure that one would face to perform a same-sex wedding, which he had a conflict with his religious beliefs,” Korten said.

It’s not just in Oregon:

Last month, the Ohio Supreme Court’s Board of Professional Conduct said judges can’t refuse to marry same-sex couples on personal, moral or religious grounds.

Judges who stop performing all marriages to avoid marrying same-sex couples may be interpreted as biased and could be disqualified from any case where sexual orientation is an issue, the Ohio board ruled.

We have a wide variety of men and women serving as judges in this country. I could be wrong, but I am not aware of any situation in which a judge is presumed to be incapable of reaching an impartial decision because of his or her religious beliefs. True, a particular judge may well be biased, but the presumption upon which our entire legal system is based is that a judge is considered impartial absent a flagrant conflict of interest (e.g., a case involving a relative is brought before his court).

It’s not like the Kim Davis case because all citizens in Rowan County have to go through Kim Davis’s office to get married. There are many ways to get legally hitched without having to go to a particular judge. You can find a willing clergyman, or a justice of the peace, or another judge. It might be inconvenient, but it is a price that can easily be paid for the sake of pluralism.

But if judges are not allowed to withhold their services as marriage agents, as a matter of religious conscience, without jeopardizing their offices, in what sense is this not a de facto religious test for public office? If this trend takes hold among the judiciary, it will result in orthodox Christians being unable to serve as judges, no matter what their demonstrated record of fairness. It is about policing the ranks of the judiciary to weed out orthodox Christians.

In 2012, a lesbian judge in Dallas County stopped marrying couples, as a protest against the absence of same-sex marriage. By the same logic that is being deployed against orthodox Christian judges, shouldn’t Judge Tonya Parker be disqualified from presiding over cases that have to do with sexual orientation?

Yes, but judges like her won’t be. It’s all about “who, whom.” This is a fight Christians should be eager and willing to take on. Marriage is widely available, from both religious and secular agents, so there is no compelling reason to penalize judges for declining to officiate at marriages. If this stands, orthodox Christians, Orthodox Jews, and Muslims who have a conscience objection to presiding over same-sex marriages will be excluded from the judiciary.

This is potentially huge. And, I believe, this kind of thing is the main way orthodox Christians and others will be driven out of the public square: by guilds and professional associations regulating their own professions in such a way as to forbid employment to people who do not conform. In his Lawrence v. Texas dissent, Justice Antonin Scalia wrote:

Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. I noted in an earlier opinion the fact that the American Association of Law Schools (to which any reputable law school must seek to belong) excludes from membership any school that refuses to ban from its job-interview facilities a law firm (no matter how small) that does not wish to hire as a prospective partner a person who openly engages in homosexual conduct. See Romer, supra, at 653.

    One of the most revealing statements in today’s opinion is the Court’s grim warning that the criminalization of homosexual conduct is “an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.” Ante, at 14. It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. The Court views it as “discrimination” which it is the function of our judgments to deter. So imbued is the Court with the law profession’s anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously “mainstream”; that in most States what the Court calls “discrimination” against those who engage in homosexual acts is perfectly legal; that proposals to ban such “discrimination” under Title VII have repeatedly been rejected by Congress, see Employment Non-Discrimination Act of 1994, S. 2238, 103d Cong., 2d Sess. (1994); Civil Rights Amendments, H. R. 5452, 94th Cong., 1st Sess. (1975); that in some cases such “discrimination” is mandated by federal statute, see 10 U.S.C. § 654(b)(1) (mandating discharge from the armed forces of any service member who engages in or intends to engage in homosexual acts); and that in some cases such “discrimination” is a constitutional right, see Boy Scouts of America v. Dale, 530 U.S. 640 (2000).

That was 2003. What would we say today to professional associations who regulate, and regulate access to, their professions, and do so to keep out of their ranks people who believe that homosexuality is morally aberrant? It may be the case that if challenged constitutionally, rulings like the Ohio Supreme Court’s Board of Professional Conduct’s could be overturned or modified as a violation of the Constitution’s ban on a religious test for public office.  This is a result religious believers should be fighting for.

It gets murkier when it comes to private entities, like the American Bar Association and the American Association of Law Schools, institutions that control access to the legal profession. No one who has not been a practicing lawyer can hope to become a judge. But if you are not able to enter legal practice without affirming homosexuality in every way, then religious conservatives — Christians, Jews, Muslims — will be unable to practice law, and unable to become judges.

Please return to my interview earlier this year with “Prof. Kingsfield,” a deeply closeted Christian professor at one of America’s elite law schools:

“Alasdair Macintyre is right,” he said. “It’s like a nuclear bomb went off, but in slow motion.” What he meant by this is that our culture has lost the ability to reason together, because too many of us want and believe radically incompatible things.

But only one side has the power. When I asked Kingsfield what most people outside elite legal and academic circles don’t understand about the way elites think, he said “there’s this radical incomprehension of religion.”

“They think religion is all about being happy-clappy and nice, or should be, so they don’t see any legitimate grounds for the clash,” he said. “They make so many errors, but they don’t want to listen.”

To elites in his circles, Kingsfield continued, “at best religion is something consenting adult should do behind closed doors. They don’t really understand that there’s a link between Sister Helen Prejean’s faith and the work she does on the death penalty. There’s a lot of looking down on flyover country, one middle America.

“The sad thing,” he said, “is that the old ways of aspiring to truth, seeing all knowledge as part of learning about the nature of reality, they don’t hold. It’s all about power. They’ve got cultural power, and think they should use it for good, but their idea of good is not anchored in anything. They’ve got a lot of power in courts and in politics and in education. Their job is to challenge people to think critically, but thinking critically means thinking like them. They really do think that they know so much more than anybody did before, and there is no point in listening to anybody else, because they have all the answers, and believe that they are good.”


“Accreditation is critical to being admitted to law schools and medical schools,” Kingsfield said. “College accreditation will matter for some purposes of sports, federal aid, and for the ability to be admitted by top graduate schools. Ghettoization for Christians could be the result.”

“In California right now, judges can’t belong to the Boy Scouts now. Who knows if in the future, lawyers won’t be able to belong to churches that are considered hate groups?” he said. “It’s certainly true that a lot of law firms will not now hire people who worked on cases defending those on the traditional marriage side. It’s going to close some professional doors. I certainly wouldn’t write about this stuff in my work, not if I wanted to have a chance at tenure. There’s a question among Christian law professors right now: do you write about these issues and risk tenure? This really does distort your scholarship. Christianity could make a distinct contribution to legal discussions, but it’s simply too risky to say what you really think.”

The emerging climate on campus of microaggressions, trigger warnings, and the construal of discourse as a form of violence is driving Christian professors further into the closet, the professor said.

“If I said something that was construed as attacking a gay student, I could have my life made miserable with a year or two of litigation — and if I didn’t have tenure, there could be a chance that my career would be ruined,” he said. “Even if you have tenure, a few people who make allegations of someone being hateful can make a tenured professor’s life miserable.”

“What happened to Brendan Eich” — the tech giant who was driven out of Mozilla for having made a small donation years earlier to the Prop 8 campaign — “is going to start happening to a lot of people, and Christians had better be ready for it. The question I keep thinking about is, why would we want to do that to people? But that’s where we are now.”

In the Kim Davis case, I think there can be and is a reasonable work-around that would protect her conscience rights but also protect the ability of gay citizens of her county to exercise their marriage rights (see Ryan T. Anderson’s piece in the NYT today) — if the Kentucky governor would get off his butt and act. But it is very hard to argue persuasively in the court of public opinion that a local official has the right to deny, effectively, a constitutional right because she perceives it to violate her religious beliefs.

It is much easier, at least for now, to point out how even Christians who have no record of discriminating against gays and lesbians in their public and professional lives are being, and will be, pushed out of those professions — and to mount resistance to it. The unsympathetic Kim Davis cannot be the only face of Christian resistance, not if we want to successfully defend our present, though shrinking, liberties.




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