Kim Davis

Kim Davis is out of jail, but she is not out of the headlines. Her name is nearly everywhere in the media. Bloggers, pundits, and even presidential candidates have opined about the Rowan County clerk.

Conservatives, Christians, and conservative Christians are deliberating whether Davis did the right thing and whether her jailing was justified. People who hold similar principles are caught in this debate because they are weighing and applying their principles differently. Consequently, the dispute indicates the need for clarity on certain issues.

For Davis, the issue was not simply the morality of same-sex marriage. It was the appearance of her name on the marriage licenses. When her appeals to be excused from issuing the licenses were rebuffed, she stopped issuing any marriage licenses at all. Ordered by the court to resume, she refused as a matter of conscience. That refusal is what prompted the judge to jail her for contempt of court.

In other words, Davis’s refusal to issue marriage licenses was not a form of protest. It was not an attempt to reverse the law of the land. Davis was just trying to avoid an action that (she believed) would have made her personally complicit in an immoral deed.

Over at Blog and Mablog, Doug Wilson has argued that “Kim Davis is not just keeping herself from sinning, she is preventing Rowan County from sinning. That is part of her job.” But Davis didn’t see it that way. Her decision stemmed from her personal unwillingness to have her name attached to a license authorizing immorality.

That is where her decision can be questioned. Does the issuing of the license actually implicate Davis in the pretense of same-sex marriage? More broadly, does a civil official, carrying out the requirements of her office, necessarily incur guilt for the injustices done by the government she serves?

Biblical evidence indicates that she does not—not always. Scripture contains multiple examples of believers who served evil governments: Joseph, Daniel and his companions, the soldiers who came to hear John the Baptist. These individuals were certainly held responsible for their own choices. They refused to do evil.

Still, they served unjust and wicked governments. So how could they carry out their duties, knowing that their service was one part of what made the evil possible? The answer is that their participation neither caused the wickedness nor made them complicit in evil that was done without their consent. By analogy, a Christian building inspector who signs a lawful occupancy permit for an abortion clinic neither approves nor becomes guilty of the murders committed there.

By issuing marriage licenses, Kim Davis is not approving the marriages. She is simply recording them—which is what county clerks do. While she rightly perceives certain marriages as an evil, her name on the license does not make her complicit in the evil. She is affected by, but not implicated in, the evil that is done.

Others have made the argument that Davis should simply step down from her post if she cannot fulfill its requirements. But that doesn’t seem right, either. Davis ran for office and was elected under a particular set of laws. It is hardly her fault that the Supreme Court decided to invalidate some of those laws in the middle of her term. She is not the one who has changed the rules in the middle of the game. It would be unfair to penalize her for refusing to do what she never agreed to do in the first place.

It is possible to reply that this isn’t a game, it is government. Those aren’t rules, they are laws. In government, “playing by the rules” is called “rule of law,” and it is fundamental to free societies.

Many have construed Kim Davis’s refusal to issue marriage licenses as a violation of the rule of law. They have been quick to condemn her for it. Coming from the Left, this accusation rings a bit hollow. The Left has built itself on civil disobedience. Defenders of same-sex marriage once lionized Gavin Newsome, then mayor of San Francisco, for issuing same-sex marriage licenses in defiance of California law. The Left wants sanctuary cities for illegal aliens. The Left has no rebuke for states that ignore federal laws against marijuana. The Left has not sought the jailing of D.C. officials who, in direct defiance of Supreme Court rulings, refuse to issue concealed carry permits. The Left appealing to the rule of law is like W. C. Fields delivering a temperance lecture.

The radicals, however, are not alone. They have been joined by significant conservative voices. Chief among them is Rod Dreher, who blogs at the American Conservative. Over the past week or so, Dreher has gone from angst over Davis to anger with her defenders. He believes that the Rowan County clerk has imperiled freedom of religion by defying the rule of law.

Dreher is partly right, but he is also wrong. He is right because, if it is to be meaningful, the rule of law must apply to all public officials. Rule of law is not for the governed, it is for the governors. It means that the law of the land restricts rulers from acting arbitrarily in their own persons. Understood thus, rule of law is a lynchpin of conservatism (and of civil order).

But Dreher is also wrong. When Davis was elected to office, same-sex marriage was against the laws of Kentucky. The state did not change its laws. Congress did not pass any bill that nullified the laws of Kentucky. Rather, five individuals—a bare majority of the Supreme Court—decided that all states must allow same-sex marriages.

Nearly everyone recognizes the Supreme Court’s prerogative to overturn laws that are contradicted by the American Constitution. No reasonable person, however, can find anything in the Constitution that resembles a right to marry someone of the same sex. The framers would have been astonished by the very notion—as would the grandparents of today’s justices. Whether good or bad, same-sex marriage is not in the Constitution, either explicitly or implicitly.

Five officials have overthrown the law on their own initiative. These five used the Constitution only in the same way that Adam used the fig leaf. A Constitution that can mean whatever five people say it means is exactly the same as no Constitution at all. If the court’s decisions cannot be demonstrably attached to the text of the Constitution itself, then the court surrenders rule of law. What is left is naked power. The Supreme Court has become a lawless and tyrannical body.

That is where we find ourselves today. The problem is not going away, because what the court cannot do de jure it has done de facto. We have already tolerated this arrogance in too many ways. We cannot fix this, not soon, not easily. What we can do is to recognize the true nature of the problem—and the problem is not Kim Davis.

This essay is by Kevin T. Bauder, Research Professor of Historical and Systematic Theology at Central Baptist Theological Seminary. Not every one of the professors, students, or alumni of Central Seminary necessarily agrees with every opinion that it expresses.

Ye Trembling Souls, Dismiss Your Fears
Benjamin Beddome (1717–1795)

Ye trembling souls! dismiss your fears;
Be mercy all your theme;
Mercy, which like a river flows
In one continued stream.

Fear not the powers of earth and hell:
God will these powers restrain;
His mighty arm their rage repel,
And make their efforts vain.

Fear not the want of outward good:
He still for His provides,
Grants them supplies of daily food,
And gives them heaven beside.

Fear not that He will e’er forsake,
Or leave His work undone:
He’s faithful to His promises,
And faithful to His Son.

Fear not the terrors of the grave,
Nor death’s tremendous sting:
He will from endless wrath preserve,
To endless glory bring.