In a recent controversy, a Kentucky county clerk refuses to issue marriage licenses to same sex couples and has been jailed as a result of it. This presents us a choice between two great dangers: the danger of tyranny and the danger of anarchy.
Most Republicans will focus on the latter danger. What if we all decided which court decisions we would follow and which we would ignore? The result would be anarchy. America is founded on the rule of law and it is only when we are responsible and follow the law, even when we disagree with it, that we can have freedom.
Many conservative judicial supremacists have been loathe to even have Congress use its own authority under Article III, Section 2 of the Constitution which gives Congress to power to regulate the jurisdiction of Federal Courts. If a precedent is set of removing matters from federal jurisdiction, what’s to stop Democrats from doing it? Thus we not only can’t ignore a Supreme Court ruling, we have to forgo the only tools the Constitution gives us to restrain the Court.
George Will makes the best argument for the Supremacy of the Court when he says the Constitution being what the Court says it is like the Strike Zone being what the Umpire says it is. If you’re standing at bat, you may think a “strike” was a little low or a little outside and thus really a ball but if you want to play the game, you have to accept the Umpire’s calls.
The problem with the Court’s decision in Obergefell v. Hodges, which purports to legalize same-sex marriage, is the majority blatantly substituted what it wished the Fourteenth Amendment says for what it does say to create a right to same sex marriage. It actually endangers the rights to religious liberty that exist under the First Amendment. Chief Justice John Roberts has done his best to guard the reputation of the court during his tenure on the High Court, but he makes no effort to do so in his dissenting opinion. He offers graciously that if you like the effect of the decision, you can feel free to celebrate it, but don’t celebrate the Constitution because, “it had nothing to do with it.”
The Chief Justice doesn’t say his court merely misinterpreted but that they totally ignored the Constitution. Let’s put this in the context of Mr. Will’s baseball analogy.
The Obergefell decision is as if a pitcher tried to toss the ball to first base to catch a runner off base. Instead the throw sails into the right field stands. The First Base umpire says the runner can’t advance to third, as would typically happen, and the Home Plate umpire calls the throw strike one. The second “pitch” beans the batter in the head, and the Umpire calls, “Strike Two.” The batter smashes the next pitch to dead center field, a hundred feet from either foul pole, and it flies out of the stadium. Your average layman would call it, “A Home Run.” An umpire decides the dignity of the other team means it should be called, “Foul ball.”
At some point, in the course of such poor officiating, the benches would clear, and there would be loud protests. The team having such colossally bad calls go against them might suspect that, rather than calling the game honestly, the umpires had colluded with the other team. If the league commissioner refused to do anything about the umpires’ biased officiating, fans and players alike would lose confidence in the game.
The same thing has happened with Obergefell. The Majority on the Court, like the obviously biased umpires, have undermined their authority by trying to change the outcome of the game rather than by officiating. This isn’t the first time the Court has done so. However, one has to go back to the Dred Scott Decision to find a court ruling that so directly threatened the everyday lives, liberty, and livelihoods of millions of Americans.
This bring us to the civil disobedience Ms. Davis has engaged in. Civil disobedience is a tradition that goes back centuries in Christianity and into the Old Testament. Historically, the people of God have been the most law abiding of people, except when a law violates God’s law, then they can be troublesome.
Many have observed that Ms. Davis could resign as county clerk as clerks across the country have. The idea does appeal. Certainly, it is a moral option for clerks to surrender their careers and offer them as a sacrifice to God rather than be an agent of unrighteousness.
Yet, Ms. Davis remains, standing in defiance of a lawless Supreme Court that wants to be the Supreme Legislature. She resists the cultural tide that would allow only non-Christians and Christians willing to sell out biblical values to hold the position of County Clerk. In doing so, she’s chosen a hard path and to make herself a nuisance to our Judicial overlords and challenged us to face many uncomfortable questions and realities.
Making hard choices that make others uncomfortable is a tradition that goes back to the Bible for centuries. Should it? If it’s wrong to be defiant, and if we should disagree with the government in the most quiet, unobtrusive way possible, then we can say that many of the Biblical heroes were wrong. If we were back in their time, we could set them straight.
We might say to Shadrech, Meshach, and Abednego, “You know guys, the King’s going to give you a second chance to bow down before his idol, and you should take it. It doesn’t matter if you bow, it’s just part of your job, and you know what, ‘God knows your heart.’ Try to trick the king by bowing towards Jerusalem. He’ll think your bowing to his idol but you’ll really be bowing towards the temple. Isn’t that clever?”
We’d be dismayed when instead they turned to the King and said, “O Nebuchadnezzar, we do not fear to answer thee in this matter. If it be so, our God whom we serve is able to deliver us from the burning fiery furnace, and He will deliver us out of thine hand, O king.But if not, be it known unto thee, O king, that we will not serve thy gods, nor worship the golden image which thou hast set up.” (Daniel 3:16-18 KJ21)
Daniel could’ve taken a far easier, far more palatable solution when King Darius decreed no one could pray to any God or man but him for 30 days. “This is really simple. You don’t have to stop praying. You just have to make sure no one sees you praying. Go take a nap or go out into the desert alone. Pray quietly and you’ll thwart those advisers who got the law passed.” Instead, we’d find that Daniel chose a somewhat more conspicuous route:
When Daniel knew that the document had been signed, he went to his house where he had windows in his upper chamber open toward Jerusalem. He got down on his knees three times a day and prayed and gave thanks before his God, as he had done previously. (Daniel 6:10, ESV)
John the Baptist had a successful ministry baptizing thousands. However, he also had a problem with sin and one of the biggest sinners around was King Herod. We might say, “Teacher, we know you don’t like what the King’s done but he doesn’t care and you should do the smart thing and stay out of politics, and not say anything against him.” We’d be frustrated as we saw John’s perfectly good (though diminishing) ministry ruined by his continuing to proclaim that Herod’s marriage to his sister-in-law Herodias was unlawful.
Who was he to try and foist a biblical definition of marriage on Herod? You can’t expect sinners to follow the law of God or to act like they know God. You have to be more gentle.
Indeed, judged by modern standards, such heroes of faith aren’t heroes, only stubborn, uncooperative people who lacked the common sense to stay out of trouble.
We’ll never publicly state that. Most Christians will praise them and other righteous practitioners of the fine art of inconveniencing tyrants. We exult people for the brave and daring in defiance of wicked laws: all praise to the Underground Railroad, Corrie Ten Boom, Rosa Parks, and Martin Luther King, Jr. We even honor Christians in other lands who stand for their faith in defiance of local laws.
We only honor civil disobedience from a safe distance. In the 1850s many a good pastor in the North would say Christians should obey the Fugitive Slave Act and return abused and beaten slaves to their masters in the South. Some congregations were unfortunate enough to have their churches located near railroad tracks during the Nazi Era. They became expert in singing louder to drown out the screams coming from those being sent to the death camps in box cars.
Thus Kim Davis is a controversial figure in her own time. She makes us uncomfortable because she suggests a comfortable era for Christians in America may be coming to an end. We may reach a point where we can’t dodge anymore: either we will surrender our faith for all practical purposes, or we will suffer to maintain a stand for righteousness. But she isn’t the villain.
The villains are five Supreme Court Justices who have decided to become Philosopher Kings and Queens. They have made the rule of law a sick joke and turned the plain meaning of the Constitution on its head to build the world they wanted. They’ve been enabled by spineless Republicans who not only refused to defy illegitimate orders of the court but have abdicated exercising the legitimate Constitutional power to restrain the court’s unlawful impulses.
Christians can stand with Kim Davis in prayer and financial support or they can delude themselves and dismiss Ms. Davis as a pestilent troublemaker getting her just desserts and that the US government would never jail anyone simply for following their faith. They can believe that only for so long before reality catches up with us all.