For the past two days, I have had an interaction with Joe Carter, a colleague of Russell Moore at the SBC’s Ethics and Religious Liberties Commission (ERLC). The interaction revolved around the ERLC’s position regarding Rowan County, Kentucky Clerk of Court, Kim Davis, and her decision to not resign from her position while dissenting from issuing marriage licenses to homosexuals. Though our interaction was cordial and appreciated, I nonetheless still believe that the ERLC’s position is dangerous and contradictory. Our disagreement seems to revolve around three issues; Is she breaking the law, have accommodations been sought and/or denied, and should she resign from her position?
The Supreme Court ruled in Obergefell vs. Hodges that banning same-sex “marriage” by the states is unconstitutional. While Carter and I both agree that this ruling is faulty, it appears the technicalities of the ruling’s effects is a major factor in our disagreement on Kim Davis’ current, and future actions regarding her duties as Clerk.
First, after a bit of back and forth, Carter says he’s unsure if Davis was breaking any laws.
Later on in the conversation, he admits that he believes her to be breaking the law.
So, I keep pressing him on what law the she is breaking, and he says “The law which requires a clerk to do the duties required by her oath of office.” Therefore, I proceeded to lay out what that law is.
According to Kentucky state law, the duties of the elected clerk, in regards to issuing marriage licenses are:
The county clerk issues marriage licenses and files and records all marriage certificates…On or before the 10th day of each month, the county clerk reports to the state registrar of vital statistics all marriage licenses issued and all marriage certificates returned. Each county clerk must furnish each applicant for a marriage license with a copy of a marriage manual to be prepared and printed by the Human Resources Coordinating Commission of Kentucky. [page 54]
And according to this same manual, the penalties for not performing these duties are:
Any clerk who knowingly issues a marriage license in violation of KRS Chapter 402 shall be guilty of a Class A misdemeanor. Any clerk who knowingly issues a marriage license to any persons prohibited by KRS Chapter 402 from marrying shall be fined $500 to $1,000 and removed from office by the judgment of the court in which convicted.
Now, apparently, this KRS Chapter 402 is what the Supreme Court struck down, as it states in its definition of marriage, in section 005:
As used and recognized in the law of the Commonwealth, “marriage” refers only to the civil status, condition, or relation of one (1) man and one (1) woman united in law for life, for the discharge to each other and the community of the duties legally incumbent upon those whose association is founded on the distinction of sex.
So, if the Supreme Court ruled that this definition is unconstitutional (which it isn’t, but that’s another argument), and henceforth struck it down, that leaves the state of Kentucky without a definition of marriage, until the legislature takes action to write a new definition.
So Carter has alleged that Kim Davis has broken the law by not performing her duties as clerk, yet, the law states that she must carry out her duties as defined in a non-existing law. The law is to issue marriage licenses in accordance to the state’s definition of marriage. The state currently has no definition of marriage. The Supreme Court did not rewrite the state’s definition of marriage, they simply ruled that the state’s definition is invalid. Therefore, if the state has no definition of marriage, Kim Davis is correct in not issuing any marriage licenses until she can legally do so according to her state’s laws. Doing otherwise would make her guilty of a Class A misdemeanor.
Therefore, I conclude there is no law being broken by Kim Davis.
Secondly, Carter says that Kim Davis should seek accommodation from the state protecting her religious freedoms, and after all accommodations have been sought and denied, she should resign from office.
But what does she need to seek accommodation from. She isn’t breaking any laws. Further, Russell Moore insinuates that Kim Davis should resign as well, as he wrote in an article on the ERLC website:
Fourth, we must recognize the crucial difference between the religious liberty claims of private citizens and government officials. Let us be clear: Government employees are entitled to religious liberty, but religious liberty is never an absolute claim, especially when it comes to discharging duties that the office in question requires. While government employees don’t lose their constitutional protection simply because they work for the government, an individual whose office requires them to uphold or execute the law is a separate matter than the private citizen whose conscience is infringed upon as a result of the law. It means the balancing test is different when it comes to government officials because of their roles as agents of the state. Government officials have a responsibility to carry out the law. When an official can no longer execute the laws in question due to an assault on conscience, and after all accommodating measures have been exhausted, he or she could work for change as a private citizen, engaging the democratic process in hopes of changing the questionable law.
As of the time of Moore’s article, accommodations had been sought and denied by the Kentucky governor, therefore, we can conclude from Moore’s words that Kim Davis should have chosen to resign.
However, Carter continues to defend Moore by saying that Moore, and the ERLC never said that she should have resigned.
Now, without assigning motives to the reasoning behind the change of heart at the ERLC here, it’s clear to see that the position here is contradictory at best. Whether or not the contradiction is intentional, it is nonetheless a contradiction. Here’s the flow of events leading to the conversation.
- Accommodations and changes to state law protecting Kim Davis, and other KY officials weredenied consideration by the governor until January.
- After Davis’ arrest, the governor continued to deny consideration for accommodations.
- Russell Moore writes and article stating that if accommodations aren’t met, Kim Davis should resign from office.
- Kim Davis doesn’t resign from office, and several high-profile Southern Baptists and politicians, including Ted Cruz and Mike Huckabee, are seen standing with her and defending her.
- Joe Carter writes an article stating why he believes Kim Davis was right not to resign and defends it on Twitter.
Now, whether or not this was intentional, this is undoubtedly seen as a back-pedaling on the ERLC’s position regarding Kim Davis as viewed by the public, and other news reports. It’s not surprising that Russell Moore would support such a position as resigning, as it’s not the first time that he’s publicly done so. In February, Moore stated that a judge who is “faced with a decision of violating his conscience or upholding the law would need to resign and protest against it as a citizen if he could not discharge the duties of his office required by law in good conscience.”
Dr. Robert A. J. Gagnon had this to say about it:
I find it hard to believe that the majority of Southern Baptists would support Russell Moore’s untenable position that Judge Roy Moore is wrong when he courageously defies the dictatorial edict of unelected rogue federal judges to invalidate his state’s constitutional amendment defining marriage as the union between one man and one woman. The Constitution does not in fact support the role of federal judges to act as legislators in redefining the nature of marriage. The absence of the mention of marriage from the Constitution (though, to be sure, presumed and accepted by all the Founders of the Constitution as male-female in character) indicates that it is a matter for the state legislatures to resolve.
The ERLC, and especially Russell Moore has been known to take a more progressive liberal position on issues as they relate to the church and culture. Moore has called Jesus an illegal alien in his unpopular push for amnesty, advocates “creation care” environmentalism, who has appointed a gay-affirming feminist who endorses gay and pornographic propaganda as an ERLC research fellow, and has said that Christians should attend gay wedding celebrations. It’s extremely difficult not to come to any other conclusion that the ERLC is pushing for social progressivism.
But I digress.
I believe that ERLC’s current position, though obviously different from the original, is still a dangerous position to take. It sets a dangerous precedent that Christians should flounder to the culture rather than fight using all that is available. Even after all accommodations have been sought and denied, I still believe that Kim Davis should not resign. The ERLC has been advocating for Christians to avoid any form of civil disobedience. However, civil disobedience is most certainly a biblical concept when civil law contradicts biblical law. If we don’t have Christians, especially in government, who are willing to fight, and even martyr themselves to jail to stand up for the faith, then that weakens the cause of Christianity, and ultimately the Gospel.
What the ERLC should be doing instead is advocating for Kim Davis, and calling on all Christians to do the same, and represent Jesus Christ while doing so. Instead of calling Kim Davis the law-breaker, they should be boldly calling five lawless Supreme Court justices the law breakers, and calling them to repent, and believe the Gospel.
In the end, God will be glorified, and Christ reigns victorious.
[Contributed by Jeff Maples, also posted at Psalm 112 Outreach]
[Editor’s Note: JD addressed this topic on his podcast, “ERLC Waffles on Kim Davis,” which you can listen to here]
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