Next Clerk Should Stand On Higher Ground Than Personal Conscience - And Response

  • Wednesday, September 9, 2015
  • David Tulis

Kim Davis is out of jail after five days, having been put behind bars by a federal judge.

Amid the cries of appreciation by supporters at a rally outside the jail building it may be hard to notice a crucial fault in the prosecution of her claims as Rowan County, Ky., clerk.

Mrs. Davis understates her claims to lawful authority to reject gay marriage by relying on religious expression and personal conscience as the basis of her claim. In standing her ground on her personal convictions, she diminishes the claims of God upon marriage and the lawful exercise of a public official having made an oath of office in God’s name.

Officeholders with earnest Christian convictions about marriage or other public matters should avoid her mistake of relying on the subjective when they should rely and defend the objective.

The line of argument by attorney Mathew Staver of Liberty Council arises from the American theological system that let the country and its people slide into its great moral crises in the first place. And that is a Christian life and worldview called pietism. Personal piety is blessed, but pietism privatizes Christianity and brings about its withdrawal from missions and the public square. It renders private God’s propriety in the world and its people, and sees God as making few claims upon the government, economics, academia and other areas of public life.

Christianity is a total system of life and practice. But pietism typified by Mr. Staver’s defense causes the same problem as a firetruck with 25-foot hoses, long enough only to save the truck itself if flames creep toward it.

Doctrine of the lesser argument

Like others, Kentucky’s federal senator, Rand Paul, promotes a “private exception” defense of Mrs. Davis. “Her heartfelt religious conviction is that this isn't the kind of marriage she approves of,” says he.

Last week on CNN Mr. Staver proposed a popgun argument to solve Mrs. Davis’ conflict vis a vis a pro-gay federal judiciary

She’s asked for one simple accommodation for her faith — not just for her, but for all the other clerks in Kentucky that are similarly situated — and that is, remove her name and title from the marriage certificates. That’s all she’s asking for.


In other words, marrying two men is a sin, and she’ll let subordinates perform these civil unions — with Mrs. Davis in the clear. Mr. Staver goes on:

She’ll issue the certificates, but she doesn’t want her name and title on it because that in her understanding and mind is authorizing something that is contrary to her Christian values and convictions. *** The judge should just order the marriage licenses to remove her name and title, and that would solve the matter.


Mr. Staver worked valiantly to save a voter-approved public servant, a Democrat, living out her “faith in God and her convictions about marriage.” We owe Mrs. Davis our gratitude for her submission to God’s will and her decision to fight, and Mr. Staver, too, is a blessed hero among Christian defenders.

But is there anything more that might be said to help those facing such confrontations? Is there a better ground upon which to stand in defending God’s law, a moral social order and one’s conscience?

Private views vs. public duty

The pursuit of an accommodation for Mrs. Davis’ personally held religious beliefs does little to bring God’s interests to bear on the larger question. That question is raised by the doctrine of the lesser magistrate, best developed in the past two years by the Rev. Matt Trewhella in a book named after that Christian doctrine.

The Christian whose views are intended to affect the public at large will take an expansive view of his (or her) office and will stand on public grounds rather than private conscience.

Officials in other states who follow Mrs. Davis’ courageous steps should refuse to issue license or certify poofter unions as marriage regardless of their beliefs about gay marriage. One could take her position even if he favored gay unions.

What controls is not belief, but law — constitutional provision, state statute, the oath of office and a state’s perjury statute. These four elements make up the “good faith & county clerk” argument.She is standing upon law — and no law requires her to marry two gays.

• She stands upon Kentucky’s marriage amendment (Amendment 1) that states, “Only a marriage between one man and one woman shall be valid or recognized as a marriage in Kentucky. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.”
• She is standing on the subsequent statute based on this ordinance passed by plebiscite in 2004.
• She stands upon her oath of office, which says, in part, “I do solemnly swear (or affirm, as the case may be) that I will support the Constitution of the United States and the Constitution of this Commonwealth, and be faithful and true to the Commonwealth of Kentucky so long as I continue a citizen thereof, and that I will faithfully execute, to the best of my ability, the office of .... according to law *** so help me God.”
• Mrs. Davis is standing on the state’s perjury statute, which she dares not offend. (“A person is guilty of perjury in the first degree when he makes a material false statement, which he does not believe, in any official proceeding under an oath required or authorized by law ***” or makes a person “guilty of perjury in the second degree when he makes a material false statement which he does not believe in a subscribed written instrument for which an oath is required or authorized by law with the intent to mislead a public servant in the performance of his official functions.”)
• She’s standing also on good faith. Good faith is important as a basis for public action because it shows a lack of malice, personal affection or hatred of another party. She’s not acting to spite gays, but is acting in good faith, in all integrity. Mrs. Davis is not standing on personal opinion, but on law.

As constitutional attorney Michael Peroutka asks, what law forces her to license two homosexuals to marry? No law. What law is she violating by refusing to marry two lesbians or two gays? No law.
The force aimed against her is a court opinion, not a law. In the future, the defense of godly constitutional government should stand on external bases, not internal.

* * *

Sources: “Same-Sex Couples Marry While Kentucky Clerk Remains in Jail,” TV9, Sept. 6, 2015.
Heather Clark, “Attorneys for Kim Davis: She Won’t Oppose Deputies Issuing License Under ‘Someone Else’s Authority’” Christian News, Sept. 8, 2015.
Kentucky Revised Statutes. 523.020 Perjury in the first degree, 523.030 Perjury in the second degree.

— David Tulis hosts a show 9 to 11 a.m. weekdays at AM 1240 Hot News Talk Radio covering local economy and free markets in Chattanooga and beyond.

* * *

Let me punch a few holes in Mr. Tulis’s latest diatribe:
1. Kentucky’s amendment was made legally null and void after the Supreme Court ruling in June. Unless he has totally forgotten the Supremacy Clause in the Constitution, federal constitution trumps state constitution when in conflict.
2. Willful perjury has to to with the license she is issuing. If she knew the information submitted on the form was fraudulent, that is perjury. Her personal opinion of the applicants is irrelevant.
3. Standing on good faith on a law that was ruled unconstitutional? Lack of malice? Please. She had no problem signing marriage licenses for people she knew were divorced and were getting remarried. Where was her “religious objections” then?
4. The same laws that apply to heterosexual couples also now apply to homosexual couple. The Supreme Court did not make any law. All the Court ruled was that state constitutional bans for gay and lesbian violated their 14th Amendment right to equal treatment under the law. That is it. Nothing more, and nothing less.
Aulcie Smith

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