Is Kim Davis Really Wrestling with a Violated Religious Conscience?

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Kim Davis, you'll surely recall, is the Kentucky Clerk of Courts who ended up spending five days in a jail cell after refusing to comply with a federal judge’s orders to sign marriage licenses for gay couples. She's out now, and back at work, and so far has been allowing her deputy clerks to sign the licenses in her stead. So most of us were hoping we’d never hear about Kim Davis again.

But she’s back in the news. Upon returning to work, according to Brian Mason, one of her deputies, Davis confiscated all copies of the County’s standard marriage certificate and replaced them with the Kim Davis Custom Edition, which “deletes all mentions of the County, fills in one of the blanks that would otherwise be the County with the Court’s styling, deletes her name, deletes all of the deputy clerk references, and in place of deputy clerk types in the name of Brian Mason, and has him initial rather than sign.”

So the struggle continues. In an interview with ABC News that came out today, Davis tried to explain why signing a marriage license for a gay couple violates her religious conscience, and some of these statements are helpful in helping us to get into Davis’s mind:

“I can't put my name on a license that doesn't represent what God ordained marriage to be," she told a reporter. “They’re not valid in God’s eyes.”

Sounds like a classic claim of a violated religious conscience, doesn’t it? Davis can’t participate in the duties that the State of Kentucky requires of her office, she says, because of a religious objection. Most bloggers are focusing on whether the law entitles Davis to accommodations, and whether such accommodations are possible without placing an undue burden on a class of people, but I have been thinking about a different issue:

Is it possible that Davis only thinks that signing a gay couple's marriage certificate would violate her religious conscience? Is it possible that even Kim Davis doesn’t understand Kim Davis’s motivations?

If we’re not dealing with a violation of religious conscience, what else might we be dealing with? I see three possible alternatives.

Open-Hearted Ignorance? Why are Clerks of Courts required to sign marriage licenses in the first place? Best I can tell, the Clerk’s function in this setting is merely to aver that all relevant documents are in order (i.e., “I looked for everything; it’s all there.”). Now, I’ve never seen a Kentucky marriage license, so I may be wrong here, but I have seen a California marriage license (my own), and as far as I can tell, the clerk is merely certifying that all of the documents that are required to execute a legal marriage contract are on file, that there are no valid legal objections to the marriage on file, and that the credentials of the person officiating (“solemnizing”) the marriage are approved by the State. In other words, the Clerk’s signature is merely an assurance that the paperwork is right. This fits with my intuitions about what a Clerk of Court’s job is more generally: Opening envelopes, cashing the money order you sent in to pay for your traffic ticket, checking boxes, and not losing things.

I wonder if perhaps Davis simply hasn’t thought carefully enough about what her signature on a marriage license—any marriage license--actually means. She’s in pretty deep now, and has dug in her heels, so she probably cannot be reached with reason alone, but it seems like someone ought to try. Who knows? Perhaps with time, perspective, and some discussion with people who love her and whom she trusts, Davis could be convinced that her signature is really just a bit of truth-telling (“Yep!  Everything’s on file!), and thus is in fact extremely consistent with her Christian values rather than an affront to them.

Disgust Masquerading as a Violated Religious Conscience? Second, I wonder whether Davis might be confusing disgust with a violation of religious conscience. Legal scholars such as Martha Nussbaum, as well as many social scientists, have written on the centrality of disgust to people’s anti-gay prejudices, and the Kim Davis situation may provide an interesting and never-before-seen variation on this theme. If Davis is disgusted by gay people or by gay marriage, then she might be hesitant to associate her name with a gay couple’s marriage license because disgust follows the laws of sympathetic magic: The things associated with you carry some of your traits along with them. In the same way that people don’t want to drink from a glass that once held a cockroach, those who are extremely disgusted by homosexuality or homosexual marriage might be unwilling to associate themselves—or their signatures—with a marriage license—a piece of paper—that has been filed by two gay people. After all, the signature has been a highly cherished representation of the self, one’s will, and one’s intentions, for 3,500 years.

If Davis’s problem is in fact not that her religious conscience has been violated, but instead is that she is disgusted by the idea of gay marriage, then the religious language can be removed from the debate entirely and we can start discussing instead what society should do with an elected public official who finds part of her work disgusting.

Weaponized Conscience? Finally, there is the possibility that Davis isn’t experiencing a genuine violation of her religious conscience at all, but instead is simply using that plea as a cudgel that enables her to impose burdens on a class of people whose behavior she (or, perhaps, she believes, God) dislikes. By Davis’s own account, she believes God has been “using” her through this debacle (“For God to use somebody like me, it’s so humbling,” she has said). I’d certainly like for her to explain that statement. It could mean a lot of things, but one thing it could mean is that this entire dust-up, in her heart of hearts, isn’t actually about “U.S. versus God & Davis:” Instead, in Davis’s heart of hearts, it could be about “God versus the U.S. via Davis.”

Take a moment to let that one sink in.

No Truth Serum

None of us, save perhaps those people in Davis’s most intimate inner circle, are ever going to know what’s really going on in Davis’s heart. Is her conscience really, truly, legitimately violated? Is she absolutely sure? Could she be disabused of that intuition by taking a little time to think about what a Clerk of the Courts actually does (remember, their job is merely to open envelopes, cash checks, check boxes, and not lose things) and what the Clerk’s signature on a marriage license actually means? Is her perceived violation of religious conscience just a case of projected disgust dressed in its Sunday best? Or is her plea of violated religious conscience a disingenuous one—a rhetorical weapon that Davis is using to impose a burden on a class of people whose behavior she (or, she thinks, God) dislikes?

The last possibility is the most interesting—and the most troubling, actually, for it raises an ominous but delightfully “meta” sort of question about religious conscience. And it’s a question that defenders of religious liberty—both liberal and conservative—need to take seriously. Should one’s religious (or non-religious) conscience be bothered if someone has debased the very notion of religious conscience by using it as moral cover for a less conscionable goal? I’m not saying she has, and I’m not saying she hasn’t, because I do not know.

But I’d certainly like to know, because the liberal compact is something like this: “You’re free to believe what you want, and I’m going to defend that freedom on your behalf. But it seems to me that there's a caveat: “If you're just messing around and don't actually believe what you claim to believe, then don't count on me to make good on my side of the bargain either."

h/t Deb Lieberman.