Neighbor Law: Parsing the Kim Davis Fuss

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© Alice Neff Lucan

Kim Davis, Clerk in Rowan County, Kentucky, is out of jail now. If she had only resigned in the name of her religious beliefs, we would have had none of this drama.  Whether or not one shares Clerk Davis’ religious views, it is an absolute in this country that there shall be a high and impregnable “wall of separation between church and state.”  Mrs. Davis may have skipped that class, but the rest of us learned that in 6th grade civics.   Mrs. Davis could refuse to recognize same-sex marriage right up to the time when she became a government official whose tasks included issuing marriage licenses.

The First Amendment says that Congress shall pass no law affecting ways of worship, the establishment of any church, the right to speak in public, press freedom, or the right to ask the government to fix unjust behaviors. As a public employee, Mrs. Davis has free speech rights, but her recent actions are not about speech. The First Amendment also protects (some) civil disobedience, which has a venerable and functional history in this country. But Mrs. Davis’ case is a more serious kind of civil disobedience, simply because she, as Clerk, refused a license on religious ground.

Mrs. Davis’ philosophy can threaten religious freedom and her supporters seem not to understand that. In his Virginia Statute for Religious Freedom, Thomas Jefferson warned that allowing a government minister to act to advance a religious belief would lead to no religious freedom at all:

“. . . to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy which at once destroys all religious liberty,’ it is declared ‘that it is time enough for the rightful purposes of civil government for its officers to interfere [only] when [religious] principles break out into overt acts against peace and good order.”

Jefferson wasn’t conjecturing. He lived during the time when one set of Christian beliefs and one church dominated the others in Virginia. Thus it would have been possible, perhaps even likely, for a clerk to refuse a license for religious reasons. The Commonwealth of Virginia was Anglican and in form at least the Anglican Church was governed by the Church of England.

A most tedious entanglement of church and state developed. The Virginia Anglicans licensed all church ministers; all citizens were required to attend a church and all were required to provide financial support for the Anglican churches. The most influential office holders frequently came from Anglican churches’ governing bodies, the vestries. Non-Anglicans could hold public jobs, but only menial positions, dog-catchers and the like. The public offices with power were held by Anglicans.

So when Mr. Jefferson ran for President, his opposition excoriated him for his non-confirming religious beliefs.

Pushed along by the Baptists and the Presbyterians, led by Mr. Jefferson and James Madison, Virginia entirely rejected that church-run life as a way of government and, of course, so did every one of the states. For a government official to withhold a marriage license on religious grounds contradicts what we are now and all the history that brought us here.

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