“Conscience is the most sacred of all property,” said our fourth president James Madison. This proposition by the architect of the U.S. Constitution was cast aside by Federal District Judge David Bunning and dismissed by a Lexington Herald-Leader editorial which recently called for Rowan County Clerk Kim Davis to “do her job or resign.” Such dictates leave many wondering whether there’s any room in the public square for citizens committed to doing their jobs according to their conscience.
The editorial questioned the motive and integrity of the law firm representing Davis and said they “can’t win” since gay marriage is legal. Just because the Supreme Court of the United States opines on a matter, doesn’t make it right. Nor is it necessarily the final word. SCOTUS once ruled that blacks were not fully human in the 19th century and that the government could forcibly sterilize people it thought unfit for parenthood in the 20th. It was wrong for SCOTUS to reject challenges to Jim Crow which ruled the South for generations and it’s just as wrong to conflate race with sexual orientation and redefine marriage to something a majority of Kentuckians believe it is not.
When Kim Davis took her oath of office, marriage was defined in accordance with natural law, part of our Constitution, intertwined in our moral fabric and a pillar of society. That is no longer the case. And her conscience binds her from participating and validating that which she is convinced is wrong. By the way, where was the LHL editorial calling for Attorney General Jack Conway’s resignation when he refused to do his job and defend Kentucky’s marriage law in federal court? Was his appeal to conscience somehow more righteous?
The editorial gins up a scenario of clerks “morality-testing prospective opposite-gender spouses” and tells of never hearing of a clerk denying licenses to divorcees, philanderers, or child abusers. No clerk has applied a litmus test for marriage because there was always an understanding of what marriage is—the union of a man and woman united bodily and ordered toward the procreation and rearing of children.
Philanderers and child abusers didn’t redefine marriage and force others to agree. Nor did they seek a marriage license based on their identity however troubling their past might have been. Most agree that philandering and child abuse are wrong, but by hinting that certain behaviors are wrong, LHL editorial writers implicitly admit that there is moral compass. The question now becomes, whose moral compass? And to what length is the state willing to go to jettison another’s moral compass and crush their conscience?
Changing the focus of the controversy from Davis’ freedom of conscience to “county clerks as moral gatekeepers” might sound convincing to those who haven’t read the Kentucky Constitution. Section V affirms “[n]o human authority shall, in any case whatever, control or interfere with the rights of conscience.” If our Bill of Rights applies to any situation, it must apply here.
The issue is much bigger than an Eastern Kentucky county clerk refusal to sign her name validating a same-sex marriage license. Its about business owners and their freedom to run their companies according to their religious convictions. Its about faith-based child welfare agencies ministering to the needs of children and placing them in homes they believe provide a moral framework best for children. Its about whether its alright for prominent figures to publicly share their views on man/woman marriage. These are the next targets in what is nothing less than a moral and cultural revolution.
Conscience, a component of religious freedom, has been respected throughout our history. It has been upheld for pacifists who oppose war. Pro-life nurses have been protected from being coerced into assisting in abortions. And Catholic pharmacists who object to dispensing birth control have been afforded such protections.
The state can simultaneously respect Davis’ conscience and abide by the SCOTUS ruling. This can be done by creating an online application for marriage registration. If there is political will to implement the latest push for an online voting registration, certainly our leaders can find the time to create an online marriage registry that protects conscience rights.
Richard Nelson is the executive director of the Commonwealth Policy Center, a nonprofit public policy organization. He resides in Cadiz with his wife and children.