After spending several days abroad and purposely disconnected from any news, I was startled upon returning to learn of the jailing of Rowan County Clerk Kim Davis. I was aware of the possibility, but jail? Really? Perhaps my return flight landed me in the wrong country—one foreign to its founding ideals, namely the one promising religious liberty.
On September 3, Federal District Judge David Bunning said “The court cannot condone the willful disobedience of its lawfully issued order.” Bunning believed such defiance would create a “ripple effect.” So he sent Davis to jail.
“My conscience will not allow it. God’s moral law convicts me and conflicts with my duties,” said a teary-eyed Davis before Judge Bunning. At issue is the fact that Davis’ name is affixed to every marriage license that leaves her office and makes her party to a sacrilegious union.
Crucial to this debate is what “lawfully issued order” means. Dred Scott and Roe and 100 years of court-upheld Jim Crow remind us that just because a judge says something doesn’t make it correct or just. We are a nation governed by the rule of law. This begins with the idea that law doesn’t originate in mankind but rather with a Creator who endows us with basic human rights. Our Constitution secures and protects inalienable human rights—including the right enumerated in the First Amendment which protects Davis to do her job according to her religious convictions.
Thomas Jefferson said “No provision in our Constitution ought to be dearer to man than that which protects the rights of conscience against the enterprises of the civil authority.” James Madison affirmed that “conscience is the most sacred of all property.” Conscience is specifically protected by Section V of the Kentucky Constitution: “[n]o human authority shall, in any case whatever, control or interfere with the rights of conscience.”
Kentucky’s 2013 Religious Freedom Restoration Act requires that before government restricts religious freedom it must have a “compelling interest” and carry this out in the “least restrictive means.” This could have been achieved by simply deleting the clerk’s name from the document altogether. It has yet to be explained how treating Davis like a common criminal and jailing her for five days was a better option.
There’s a double standard when it comes to how courts treat left-leaning officials who defy the law. In 2004, San Francisco Mayor Gavin Newsom unilaterally ordered city clerks to issue marriage licenses in defiance of the law. He appealed to his conscience to justify his lawlessness rather than obeying the actual laws of his state. No federal judges intervened. No police were called. Where were the federal judges threatening U.S. Attorney General Eric Holder for refusing to defend DOMA in federal court?
It didn’t happen because this moral revolution aggressively tilts toward the subjective. It ultimately rejects fixed law rooted in objective standards. The velocity of this revolution is taking many by surprise and it’s taking no prisoners, except Kim Davis, for now.
The thousands who protested in Grayson on Tuesday realize the issue is much bigger than a county clerk’s refusal to validate a same-sex marriage license. Without religious freedom and conscience protections, faith-based child welfare agencies like Sunrise Children’s Services will be forced to place children in same-sex parented homes. Business owners who operate according to their religious convictions and cater to the wedding industry will be forced to materially participate in same-sex weddings through their goods and services. And military chaplains could be forced to perform same-sex weddings.
Conscience is a component of religious freedom and it has been protected throughout our history. It has been upheld for sabbatarians who’d otherwise be forced to work on Saturdays, pacifists who oppose war, and pro-life nurses from being coerced into assisting in abortions. It’s time to add county clerks to the list and free their conscience’s from judges who would bind them.
Richard Nelson is the executive director of the Commonwealth Policy Center, a nonprofit public policy group. He resides in Cadiz, Kentucky with his wife and children.