Is Kim Davis defending religious liberty?

Kim Davis lawyers' file appeal to federal court
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  • S.E. Cupp and Joe Loconte debate whether Kim Davis is a victim of religious oppression
  • Can government officials on religious grounds choose to ignore laws they find objectionable?

(CNN)Kim Davis is a Kentucky county clerk who spent six days in jail for refusing to issue marriage licenses to same-sex couples, claiming it conflicted with her religious principles. She was back at work Monday, but still said she will refuse to issue or authorize same-sex marriage licenses. She has asked that the Kentucky Legislature provide an accommodation that lets her keep her job without violating her faith, such as removing her name and title from marriage certificates. However, this would likely make those marriage certificates invalid.

S.E. Cupp
In the last several days, S.E. Cupp, a CNN commentator and author of "Losing Our Religion: The Liberal Media's Attack on Christianity," exchanged emails debating the merits of Davis' case with Dr. Joe Loconte, professor of history at The King's College and author of "A Hobbit, a Wardrobe, and a Great War: How J.R.R. Tolkien and C.S. Lewis Rediscovered Faith, Friendship, and Heroism in the Cataclysm of 1914-1918."
S.E. Cupp: Even though I support gay marriage and am not religious, I really admire Kim Davis standing by her religious principles. And I sympathize with her inner struggle.
    When she was elected last year she sounded excited and determined:
    "My words can never express the appreciation but I promise to each and every one that I will be the very best working clerk that I can be and will be a good steward of their tax dollars and follow the statutes of this office to the letter," Davis said at the time.
    But since she was elected, and can't be fired for refusing to perform the duties of her job, isn't the reasonable thing to quit?
    Joe Loconte: Kim Davis was sent to jail because of her convictions, and so we must ask ourselves: Is this the kind of democracy we want? Is there no public space in a supposedly pluralistic society for people who believe deeply in traditional marriage?
    Joe Loconte
    If Ms. Davis was an African-American woman — and most African-Americans identify as Christians who support traditional marriage — would the same judge have dared to order her into prison? Would the same people be howling about her actions if she was a black woman?
    It's not an idle question. U.S. District Judge David L. Bunning, who jailed Ms. Davis for contempt, claimed that "the idea of natural law superceding this court's authority would be a dangerous precedent indeed." Judge Bunning could hardly be more ignorant of America's civil rights tradition.
    Martin Luther King Jr.'s entire campaign of civil disobedience was based on the belief that citizens owed allegiance to the "natural law" — a moral law higher than that of any civil authority. As King put it in his Letter from Birmingham Jail: "One has a moral responsibility to disobey unjust laws."
    Kim Davis stands firmly in this American tradition of nonviolent protest against laws that appear to her — and to many others — to be unjust, because they violate the natural law about sexuality and marriage.
    Is there no way to publicly accommodate the citizen who holds these beliefs?
    SE: You ask the important questions: One, "Is there no public space ... for people who believe deeply in traditional marriage?" and two, "Is there no way to publicly accommodate the citizen who holds these beliefs?" Both are getting at the same issue, and I think both have the same answer.
    Yes. Kim Davis was not told she must endorse gay marriage. There are processes in place to change laws, if that is her interest. But in the absence of changing the law, she was merely told to uphold it. If that conflicted with her religious convictions, she could have asked to move to a position that didn't put her in that spiritual dilemma, which seems a reasonable public accommodation. She has a right to her religious freedom -- a right I hold in the highest esteem -- but she doesn't have a right to be a county clerk if she's unwilling to do the job.
    Would you advocate for other government officials to pick and choose which laws they enforce?
    Further, I think that framing this as a violation of Davis' religious freedom does a great disservice to the very real infringements on religious freedom that private citizens -- not corporations or government officials, like Ms. Davis -- endure on a regular basis, in this country and others. Secularists already insist the "war on Christians" is ginned up -- a charge I wrote an entire book debunking. But I worry about seizing on stories like this and cementing their case.
    Finally, I agree that jail seems a wholly disproportionate response, although standing on principle is only meaningful if it requires some sacrifice. Up until her imprisonment, she hadn't made any. She refused to do her job and still got paid to do it.
    But while I have you ... how does Romans 13: 1-5 inform this debate, if at all?
    JL: You are absolutely right to raise the problem of government officials picking and choosing what laws they will enforce. This is exactly what the Virginia attorney general, a Democrat, did last year when he announced he would ignore the state's ban on gay marriage. Putting that bit of liberal hypocrisy aside (and I think you share my view on that), conservatives should be the staunchest defenders of the rule of law.
    So, yes, all of our rights are qualified, even our right to religious freedom. Davis' act of civil disobedience is dangerous territory: a possible route to social chaos. We should avoid it at almost any cost.
    But let's remember how we got here: Five unelected judges have redefined marriage for the entire nation, and shut down democratic debate on the topic. They did so only by shredding the constitutional limits on their power. In his dissent from the Supreme Court's ruling, Justice (Antonin) Scalia was right to condemn as sheer "hubris" their contorted reasoning about marriage. "They know that an institution as old as government itself, and accepted by every nation in history until 15 years ago, cannot possibly be supported by anything other than ignorance or bigotry."
    If Kim Davis, and every religious believer like her, must resign from any government job involved in marriage and family law, then where does that leave us? It leaves us with a religious test for public office — a violation of Article VI of the Constitution.
    There's a better answer: Find ways to accommodate public servants with sincerely held religious beliefs about traditional marriage, while upholding our new marriage laws, a topic we should talk more about.
    As for Romans 13:1-5, about Christians submitting themselves to the governing authorities: Like most passages in the Bible, it shouldn't be interpreted in a legalistic and absolutist way — if so, then we'd have to condemn nearly every Christian social reform movement in history as an affront to God.
    S.E.: Good point on quoting Scripture. Usually problematic in one way or another. I think we can all agree that the government should not be in the marriage business. Whether using the tax code to reward some and punish others, or deciding whose marriage is federally recognized and whose isn't, inserting itself into issues like death benefits and hospital visitation, which should be deeply personal, the government has far too much influence on the institution of marriage. And I'm sure you and I both agree it's an institution worth preserving!
    J.L.: Yes, I wholeheartedly agree: Let's figure out better ways to strengthen the institution that has been the bedrock of every society since the dawn of civilization.