Once upon a time I was a sworn officer of the State of Kansas, occupying a statutory office as deputy secretary of state for legislative matters. I had to take an oath before I could sign my name to anything that pertained to the job. (Somewhere I think there is still a photograph of the occasion, with my local state representative and senator looking on admiringly.)
The duties entailed, among other things, registering lobbyists and certifying receipt of their financial disclosure forms. We also did bill engrossment, by hand. It’s all computers these days.
This was technical work, and exacting. Following action on a bill—amendment, substitution, final passage—the senate clerk or house clerk would deliver to me the rolled up wad of alterations done to the original copy. My staff would unroll the wad, mark the places where insertions or deletions were to be made, and produce a fair copy from the typewriter on some really nice paper. On the cover, under where the clerk had signed that it was delivered and where I had signed that it was received, I would once more sign that the bill had been properly engrossed and delivered back to the clerk of the originating house.
I was under oath to do the job, and it was an oath I took without “mental reservation.” If some legislative proposal crossed my desk, no one cared what I thought of it; I was obligated to conduct the work assigned by the Legislature. It meant, even when Fred Phelps showed up to register as a lobbyist, that he got registered like everyone else, no matter what an icky blowhard that guy could be.
My thinking on Kim Davis, initially, was if she couldn’t in good conscience do all the work of a Kentucky county clerk as her own oath of office bound her to do, she should honorably resign, period. End of discussion. Call a special election, whatever, but she should quit.
The U.S. Supreme Court made an applicable ruling—whatever its manifest constitutional deficiencies—that obliges the county clerks of the State of Kentucky to issue marriage licenses to every couple regardless of sexual orientation. That was her job, under oath: to attest by signature that the license was issued and delivered, the papers filed, and the fees collected. That’s all.
Ryan T. Anderson’s New York Times op-ed bore the title “We Don’t Need Kim Davis to Be in Jail.” No, I sort of thought we did. The governor of North Carolina made an earlier assertion on a similar subject: “[N]o public official who voluntarily swears to support and defend the Constitution and to discharge all duties of their [sic] office should be exempt from upholding that oath.”
Yet Anderson makes an argument that now persuades me otherwise; She doesn’t need jail. “Had same-sex marriage come to Kentucky through the Legislature, lawmakers could have simultaneously created religious liberty protections and reasonable accommodations for civil servants.”
Which, as it happened, is what the North Carolina Legislature did, rejecting the governor’s veto of legislation permitting a religious accommodation for certain public officials—magistrates, judges, registers of deeds—to decline gay marriage ceremonies without penalty. The New York Times, naturally enough, calls this kind of accommodation permission to “circumvent equal protection for same-sex couples on grounds of religious freedom.” Circumvent? If the military draft ever returns, I wonder what word the NYT would use for “conscientious objection?”
Anderson thinks he is speaking reasonably to reasonable people. “In the aftermath of the court’s marriage ruling,” he not unreasonably suggests, “we need not perpetuate a culture war, and we need not seek a winner-take-all solution. Peaceful coexistence is possible. North Carolina gives us a good example on how to proceed.”
I like that, but then I am a reasonable sort. Unfortunately, lawsuits are underway—or will be soon—in North Carolina by some who are not so reasonable, petitions to overturn the act granting the conscience provision. That, I fear, will be the fate for every similar attempt at compromise on the question. One side has the bludgeon and the other has hardly a prayer.
What Anderson does not acknowledge is the problem of being at the end of Christendom. That’s the mess Kim Davis is in. Predicted Stuart Koehl, “There are fundamental differences . . . regarding the nature and purpose of marriage, which in a secular society means, inevitably, that the state’s understanding of marriage is going to prevail, and be enforced by coercive measures.” It may end up as winner-take-all.
Koehl, and others as well, argues for Church marriages with no official status: “a return to the pre-Constantinian practice of the Church in which a Church marriage is a purely sacramental matter, subject to the doctrine and disciplines of the Church, but without legal standing” with the state. If the state wishes to regulate marriage, it should be prepared in the future to do so without the connivance of Christians.
I do not believe—and this is important to say—that county clerks who are Christian violate conscience by signing the licenses as their oaths require. It is an oath, after all, and unless fulfilling it involves grave sin, it can be honored in the normal course of a day. The image of God, after all, flickers yet among our fellow citizens, even among those most opposed to the Christian vision. The secular state still fosters for us what St. Augustine called the “consolations” of civic life. Here we seek peace and amity. Since we Christian pilgrims travel through time in mixed company, it would be good, I say with Anderson, to find a way of doing it fairly for all.
Russell E. Saltzman is book review editor at Aleteia. His latest book is Speaking of the Dead. He can be reached at email@example.com, and his previous First Things contributions are here.
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