Kim Davis and the Freedom of Religion

I haven’t said a single word about Kim Davis, the Kentucky county clerk who started out illegally refusing marriage licences to gay and lesbian couples and then expanded it to all couples; 'because if I have to let gay and lesbian couples marry, then I won't let anyone get married - so there!' As you know, Federal Court judge David Bunning sentenced her to gaol time for contempt. Now, we have a whole bunch of moral crusaders, Christian fundies, opining stridently that freedom of religion is at stake. I call BS on that and here’s why.

The U.S., like Australia, has a separation of church and state. The statutes on which this convention relies have been there from the beginning: in the U. S. in the 1st Amendment, and in Oz, in s116 of the Constitution. These effectively bar any religion at all from being the ‘established’ or official religion of the state. Everyone’s free to worship as they wish, but no official favourite faith for the nation. As well, this convention makes sure that to hold a Government job, in either country, you don’t have to pass a religious test. There is no religious pre-requisite you have to attain before you can hold down a Government job. The State remains neutral or secular. This is as it should be.

Kim Davis, I suspect, is a simple woman who has not long ago had a conversion experience in a pentecostal type denomination. She will not have done the reading that say, an average gay person of faith would have done around issues of spirituality and sexuality. She will have been taught that homosexuality is a sin, and more likely, an abomination. She will not know any of the science around human sexuality. She will have been indoctrinated into conventional religious homophobia and LGBTI bigotry that have plagued the Christian Church and harmed so many millions of people for millennia. But she is in a position of power. This is her moment in the sun; her fifteen minutes of fame.

But her statutory power over these matters was curtailed, as was the power of Federal Courts and State Courts and lower district courts, once the Supreme Court of the U.S. decided that marriage between two people of the same gender cannot be banned by any State in the Union and that to do so would breach the anti-discrimination aspects of the U.S. Constitution; effectively saying that there is a Constitutional right for two people of the same gender to marry. Once that became law, there were consequences for every Government department and employee in the land. Now, whether you like it or not; it is the law. Whether you hate homosexuality or not; it is the law. Whether you believe that God will punish all homosexual people or not; it is the law. Whether you read the Bible literally and interpret its clearly historically contextualised passages as being absolutely pertinent to today (except for the bits about menstruation, barbering, agrarian practices, polyester and stoning people to death), or not; it is the law. It is the official legal understanding of what the Constitution means.

Given the historic and utterly clear mandated legal status that there is no established religion in America (or Australia) and that Government employees must do their jobs without fear or favour to ALL citizens and bring no discriminatory practice to the workplace at all – no exception – then Kim Davis must either begin to issue marriage licences to gay and lesbian couples or, if she is unable to do so, resign her office. What she cannot do, any more than anyone else in the United States can do, is discriminate in the administration of her statutory duties on the basis of her own personal beliefs. She cannot have it both ways. No Government employee in the entire U.S. nation is permitted to do that. No-one!

As I read the commentary of what happened in Judge Bunning's Federal Court, it is plain to see that Kim Davis was given more latitude to change her behaviour than most. The conservative judge, whose own views on gay marriage are understood to be non-supportive, was very accommodating of her, but she refused to co-operate and just stood dogged. He offered not to gaol her for contempt if she would go back out there and do her job lawfully. She refused. He even tried to help her understand that she was not being asked to agree with gay marriage or to support it, but to merely sign the appropriate documents as county clerk to say that the paperwork had been attended to properly, carefully, responsibly and legally; all i's dotted, all t's crossed. She refused. He then had no choice to but to gaol her as he had already made orders that the county clerk’s office perform its statutory duties according to law. Now, she was continuing to defy his existing orders to his face. And she had even tried to go over his head and sought leave to appeal to the Supreme Court but the Justices of the Supreme Court wouldn’t touch it.

She now has no choice but to resign if she will not change her behaviour. Or, if she will not resign, be removed by whatever means is prescribed for such a removal.

Now as for this being a breach of freedom of religion; sorry, an emphatic no. Kim Davis is free to worship wherever she wants, to believe whatever she wants and to practise her faith in whatever way personally she sees fit. No-one is stopping her. And neither should they be able to. She has the same rights as all Americans in this regard. But like all other Americans, that right does not guarantee her immunity from the law should she discriminate in her statutory duties. Such discrimination is a crime. And defying Court orders is also a crime. No-one takes any joy in seeing a woman of her age being punished behind bars. From what I understand, Judge Bunning was none too thrilled at having to impose a custodial sentence on her. But don't forget: she didn't have to be there. She resolutely chose to continue to defy a Federal Court Judge. She is being characterised by the Christian Right figuratively as a martyr. But Kim Davis is clearly NOT a martyr.

Mike Thompson 2015 Detroit Free Press

The U.S. and Australia live by the rule of law. Each of us is a nation of laws. They are carefully calibrated. Our rights have limits and we all understand this. We have a right to a free press and free speech and free movement and a right to associate with various groups. But the press cannot knowingly write falsehoods about people and free speech is curtailed at the point of hate speech or the inciting of others to violence. Freedom of association is curtailed at the point of joining proscribed or criminal groups. Freedom of movement is curtailed at defence base and gaol perimeters, for example. Freedom of religion is also curtailed when your rights to worship impinge upon my rights as a citizen. All rights have delimitations. People’s mainstream or wacky idiosyncratic belief systems get trumped by our constitutions and conventions and our laws when it comes to established religion and no religious discrimination by the State. This situation in the U.S. is not remotely a freedom of religion issue. It is a rule of law issue. Imagine if strict orthodox Jews or strict Moslems in Government jobs decided by some stricture of their food or dress codes to no longer assist people who did not adhere to their belief. There would be an enormous hue and cry. So too for the likes of Kim Davis. The Bible belt is still bleating that America is no longer living that ‘ole time Gospel’ type Christianity; or they do when it suits them. They are just going to have evolve.

Kim Davis has in one sense, done America a favour. She has reminded the whole nation of the 1^st Amendment to their Constitution and how rights have culturally-imposed limits. She has reminded us all why the separation of church and state is so important.

PS. If you're interested, I did write another piece with a similar theme, called Of Church and State and Marriage Equality on this blog.