Wednesday, September 9, 2015

Religious Liberty and the Law

In Robert Bolt's popular play about Saint Thomas More, A Man for All Seasons, there is a famous conversation between More and William Roper, about the value of the rule of law:

William Roper: So, now you give the Devil the benefit of law!

Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?

William Roper: Yes, I'd cut down every law in England to do that!

Sir Thomas More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!

Whether or not that conversation ever actually occurred in exactly those words, what Saint Thomas More is represented as saying certainly reflects More's actual life and career as a public servant, devoted to the law, who faithfully served the Crown as Lord Chancellor, but then resigned from that exalted post when the expectations associated with that office suddenly conflicted with his higher religious commitments.

More's example is always edifying and always relevant, but perhaps especially so right now when novel claims of religious liberty are being put forward. I refer, of course, to the contentious case of the Kentucky County Clerk, Kim Davis, who, for refusing (on ostensibly religious grounds) to fulfil all the requirements the job she was elected to, recently spent some time in jail for contempt of court. 

One alternative, obviously, would have been for her simply to do her job and enforce the law - something civil servants routinely do all the time, something devout Christians do all the time, even if it means issuing marriage licenses or performing civil wedding ceremonies for couples whose marriages are religiously problematic (not just same-sex couples but also, for example, divorced people remarrying contrary to Jesus' explicit prohibition in the gospels). 

But, supposing one is personally convinced (correctly or not) that one cannot in good conscience issue such a marriage license, there remains always the second alternative - the very honorable alternative - of resignation. In his historic speech to the Houston Ministerial Association on September 12, 1960, presidential candidate John F. Kennedy famously said:
But if the time should ever come — and I do not concede any conflict to be even remotely possible — when my office would require me to either violate my conscience or violate the national interest, then I would resign the office; and I hope any conscientious public servant would do the same.

More recently in 2011, Justice Antonin Scalia said that he himself would resign if he "thought Catholic doctrine held the death penalty to be immoral." It was also Scalia who famously authored the Opinion of the Court in Employment Division v Smith (1990)  where he argued that the Free Exercise clause "does not relieve an individual of the obligation to comply with a law that incidentally forbids (or requires) the performance of an act that his religious belief requires (or forbids) if the law is not specifically directed to religious practice and is otherwise constitutional as applied to those who engage in the specified act for nonreligious reasons."  

Certainly, the United States has a long and commendable tradition of accommodating religious minorities. For example, back when we still had conscription, Quakers could - and did - register as conscientious objectors. As long as the job gets done, society is in every way better off when maximum freedom is provided for citizens to exercise their religious beliefs and practices. Thus, for example, if the County Clerk were a devout Jew, who would not sign a document on a Jewish religious holy day, it would be eminently reasonable for the state to authorize a Gentile deputy to do the signing on that day in his or her place. An analogous kind of arrangement was, I believe, proposed in the Kentucky case, but was not initially accepted by the clerk, which was one reason why she for a while found herself in jail. (I guess we'll see, when she returns to work today, what will happen now.)

As I said above, I know of no past case of any devout Christian refusing to sign a civil license for a divorced person remarrying even though such a marriage is contrary to Jesus's explicit prohibition against remarriage after divorce. I also know of no case of devout Catholic refusing to sign such a license for a divorced person remarrying civilly without the required Church annulment, or for a Catholic marrying civilly contrary to the canonical form, or for a not yet laicized priest marrying civilly in contravention of the Church's law of clerical celibacy. All of these are cases where a legal civil marriage is invalid in the judgment of the Church. Yet never, so far as I know, has it been asserted that it would be sinful for a Catholic clerk to sign such a licence in his or her civil capacity. On the contrary, we have long been accustomed to the idea that not all civil marriages are valid according to religious criteria, but that does not change the fact that they are civil marriages which the relevant civil officials are required to process as part of their job. So why should this situation be any different?

It might be possible (and hence desirable) to craft an explicit exception that somehow allows a clerk not to sign such marriage licenses on religious grounds.  As long as the requirements of the law are being met by someone else, society as a whole is better off when religious beliefs and practices are accommodated as generously as possible.

But my fear is that the exact opposite may likely happen.  I fear that the long-standing American consensus in support of the 1st Amendment may be eroded rather than strengthened by this kind of case, which is not the typical case of a religious individual or minority simply seeking freedom for themselves to live and act according to their beliefs, but a case of invoking one's own personal religious liberty to prevent others from exercising a different civil right also guaranteed (however mistakenly) by the civil law. Kim Davis is undoubtedly sincere in her beliefs, but her contentious approach to the responsibilities of her office (which she freely assumed and took an oath to fulfill) is not likely to win widespread acceptance in American society. If she becomes the poster person for the cause of religious liberty, then I fear that the cause of religious liberty may be the primary loser. That is a terrible shame, for there are real and serious religious liberty issues at stake in today's world.  But empowering people who have freely sought and accepted public office to refuse to carry out the responsibilities of that office (thereby possibly denying civil rights to others) surely cannot be one of them.

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