QUICK TAKES – The Legality and Larger Meaning of Kentucky Clerk’s Refusal To Issue Marriage Licenses For LGBT Couples

Current Events, Quick Takes, Marriage Equality

The refusal of Kentucky county clerk Kim Davis to issue marriage licenses to LGBT couples on grounds of religious conscience has set off a storm of national controversy in recent days and has resulted in her jailing on orders from a federal judge.   The legal issues surrounding her defiance as well as its theological implications was put before two of Political Theology Today‘s regular contributors.

QUICK TAKES is a feature managed by PTT Current Affairs Editor Carl Raschke.  If you would like to be part of the “rapid response teams” that responds in this section to news of the week, please send the editor an email along with a brief description of the general topics on which you would like to comment.

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Religious Accommodation Is Key Issue in Kentucky Case

While mainstream media has incorrectly thrown about  the phrase  “First Amendment Rights!” in other recent cases that involve purely private parties, they got it right with the case of the clerk in Kentucky who is adamantly refusing to issue marriage licenses now that she has been directed to issue licenses to same-sex couples due to her belief that God’s higher authority prohibits such action…or did they?

Here there is a valid First Amendment debate: the government is demanding a person do something that she believes interferes with her religious beliefs. This is precisely what the First Amendment was designed to protect against!

However, let’s dig a little deeper. On the one hand, we have the government directing a public employee to engage in a task that she believes goes against her faith.  On the other hand, we have a public employee who will not carry out her job duties (which she was elected to perform and took an oath to uphold).

While government employees do not discard their First Amendment rights and protections when employed, they do have certain restrictions on those rights that you or I don’t have as private citizens.

First Amendment cases involving employee speech have typically arisen when a public servant experiences a negative employment action because she becomes a whistleblower, is not aligned with her supervisor’s political affiliation,  or engages in speech that her employer deems disruptive to the workplace.

The disconnect here, however, is that such an incident does not amount to a free speech case, but becomes one of whether an employer (in this case the government) must accommodate an employee’s religious belief in the workplace.

Let us consider a different example.  Imagine a candidate interview for a police officer position.  She is asked whether she would be willing to use deadly force when necessary to protect the public.

Assume only appropriate use of force here. Imagine that she responds, “No, I would not be able to do that,” and her rationale is, “because I am a Quaker who practices a commitment to pacifism so there would never be a suitable time for me to use my firearm.”

When an employee/candidate will not engage in an activity due to a sincerely held religious belief, the employer must make reasonable accommodations for her. However, the requirement for reasonable accommodation ends when the accommodation imposes an undue burden or hardship on the employer. Often the most defensible explanation of an undue burden is that the cost of the accommodation would be excessively burdensome on the employer.

Returning to the above hypothetical, it would seem to be a reasonable analysis that the law enforcement applicant will assuredly be denied the job – not because she is a Quaker, but because she won’t commit to the stated job responsibilities and a reasonable accommodation does not seem available.

It is difficult to imagine an accommodation to that situation. Would a second officer always have to accompany her in case deadly force was required? Would she never be assigned patrol duty?  The same analogy seems to work in this instance.

If the Kentucky clerk were asked if she would carry out the job duties of issuing marriage licenses to those couples appearing before her, she would say (and has said), “no.” In the case of the Kentucky clerk, if she refuses to issue marriage licenses to same-sex couples, for example, could someone else do it? If they did so, would they be taken away from their other job responsibilities?   If not, would the organization have to hire someone else to do the job?

As it turns out, the clerk has been imprisoned for contempt of court. At least one deputy clerk has come forward to issue the marriage licenses, and now the new debate is whether a deputy clerk has the same authority.

The focus of this Kentucky case should continue to be the question of accommodation in an employment setting.  Can this clerk’s request for accommodation be granted or does such accommodation create an undue hardship or burden on the government?  Can a deputy clerk issue licenses that are valid, or is the head clerk the only one with such authority?  If she can be accommodated, the debate is likely over. If no accommodation is possible, she will not carry out her job responsibilities and should resign.

While the passion of religion lies behind this debate, the neutrality of an employment law analysis should ultimately decide this issue.

B. Brittany Scantland-Lall is a local government attorney in North Carolina.   She has taught business law and ethics at the University of Denver Daniels College of Business, and has an MA in religious studies at the university with an emphasis on law and religion

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Moral/Theological Issues Of Sanctity and Degradation Are At Play In Controversy

Perhaps we should take Kentucky county clerk Kim Davis at her word when she insists that issuing a marriage license to fellow gay Christians David Moore and David Ermold would go against “everything sacred in my life.”

Social psychologist Jonathan Haidt identifies “sanctity-degradation” as an affective axis of moral intuition that turns on the opposition between disgust at contamination and rapturous desire for elevation and transcendence.

Moral intuitionist studies have found that when disgust-sensitive people visualize same-sex acts, they are gripped by something that feels like religious offense.  If God is Davis’s “first love,” homosexuals are near to her first aversion, her mold-covered cheese, the taste of decay and putrefaction,  the opposite of sanctity.

The Christian religious tradition with which both Kim Davis and the Moore-Ermolds identify, however, problematizes the “sanctity-degradation” axis.  The challenge of the Christian incarnation is the coincidence of God with the lowest and the most base. God enters fully into human flesh becoming a spectacle of treason and insurrection, reduced to meat hanging on an executioner’s instrument. God incarnate is found in what is most opposed to sanctity.

This challenge is evident throughout early Christian literature. But perhaps it is most clearly illustrated in the first beatitude: “Blessed are the destitute, for theirs is the Kingdom of God” (Luke 6: 20).

As John Dominic Crossan has argued (272), first century Greek had two very different words that contemporary English might render as “poor.”  The first, penetes, refers to the self-sufficient deserving poor. The penetes functions as a nostalgic ideal in Roman political discourse, evoking the rugged, simple good life we lived before we were softened by luxury.

The second, ptochoi, refers to the expendable, degraded beggars who huddle under the bridges of the city like the walking dead.  It is the excessive, repulsive ptochoi that the gospels call “blessed.” God is with us where emptiness and degradation become so extreme that the respectable citizen recoils in disgust.

Not surprisingly, Christian theology recoils from the trope of incarnation that spawned it.  Paul no sooner shocked the church in Corinth with the declaration that the sinless one “became sin” (2 Cor 5: 31) than he asksedthe unruly congregation to avoid giving offense (2 Cor 6: 3).

And for the church father Clement of Alexandria, incarnation’s purpose is to extract the pure form from the mess of the material body, so that the Christian can be “clean rid of those things which constitute him still dust” (Paedagogus II.1).

The degraded destitute have no place in Clement’s theology, which contrasts the decadence of wealth with the disciplined simplicity of spiritual poverty.  Decadent wealth starts with small effeminacies like shaving the beard, bad table manners, and playing the flute, and culminates in the degradation of “playing the woman” in bed (Paedagogus III: 11).

Conversely, the work of God in Christ becomes the pedagogy that purifies humanity of the soft, slimy excess impeding its reduction to the divine form. This may sound like right-wing Christianity, but the revision of the degraded destitute into the respectable poor has its echoes on the theopolitical left.

As the late Marcellus Althaus-Reid observed (25), the carnivals that are the “Christmas of the indecent” in the fabelas of Latin America “are invisible in theology.”   In order to meet the commercial demand of the global north for romanticized revolutionary heroes, liberation theologians became like the squirrel in the Gary Larssen cartoon who says to his compatriots preparing to beg for food in the park:  “Now, try to look cute, and you Carl, stop smoking” (26).

Like Clement and the liberation theologians, both Kim Davis and the Moore-Ermolds shun degradation and strive for elevation, the Moore-Ermolds by being married in Rowan County and Davis by refusing them.  But Davis and the Moore-Ermolds are also dueling symbols of imaginary degradation.

“Disgust-sensitive” fundamentalists recoil, imagining the Moore-Ermolds in the marriage bed.  And now, thanks to the revelation of Davis’s multiple marriages, “disgust-sensitive” liberals are confronted with their own scary image of a poor, Appalachian salt-of-the-earth type serially betrothed to the kind of low-class people they themselves consider revolting.  And this figure, like that other one, approaches the scandal of incarnation that speaks the words “blessed are the destitute, for yours is the kingdom of God.”   God with us.

Alan Jay Richard, Ph.D., is an independent scholar and activist currently affiliated with Realistic Living, a nonprofit community in rural north Texas that experiments with new forms of collective Christian practice. He has been involved in activism since his work with the AIDS group ACT-UP in Syracuse during the late 1980s, leading to a 20-year career in public health epidemiology and research. Since leaving that career to work in the religion field, he has also been involved in environmental and anti-poverty activism. Along with his Realistic Living work, he serves as president of Citizens Organizing for Resources and Environment, and facilitator for the Fannin County Good Food Project, an effort to address rural food insecurity. He is currently interested in developing educational and spiritual formation paths for unconventional and subversive ministries.

 

 

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