Kim Davis: When Civil Disobedience is Used for Evil

by Benjamin Studebaker

Kim Davis has just been released from prison. Davis is the infamous Rowan County, Kentucky clerk who refused to issue marriage licenses to gay couples. Clerks are elected (bizarrely, Davis was elected as a democrat), so Davis cannot be summarily fired. Instead, she was taken to court and ordered to issue the licenses. She appealed, but the Supreme Court refused to hear her appeal. She continued refusing to issue licenses anyway, and was jailed for five days for contempt of court. She vows to continue refusing to issue licenses. So far, Kentucky Attorney General Jack Conway (another democrat) has declined to appoint a special prosecutor to charge Davis with misconduct. When Davis was released from prison, she was greeted by throngs of supporters led by US Presidential candidate Mike Huckabee. Ted Cruz was also in attendance, but Huckabee’s people succeeded in marginalizing him. The reaction from people to this has been very interesting–nearly everyone is being a hypocrite about Kim Davis (including Kim Davis), on all sides.

Let’s start with Davis. From a secular moral standpoint, Davis’ position is simply mistaken–allowing gay people to marry benefits them without harming anyone else. By refusing to marry gays, Davis violates John Stuart Mill‘s harm principle, which states:

…the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.

The harm principle is, with very few exceptions, a good moral principle. Gay marriage is not one of the exceptions (they generally have to do with children, who sometimes need to be coerced by their parents for their own good because they are not yet fully competent adults). For this reason, every person should support gay marriage.

But the harm principle is not in The Bible, and Kim Davis claims that she rejects gay marriage because she is a Christian and she believes that God’s law supersedes the law of man. Mike Huckabee has made similar claims. It is true that in Leviticus, God commands that homosexuals be killed:

If a man lies with a man as one lies with a woman, both of them have done what is detestable. They must be put to death; their blood will be on their own heads.

But in the new testament, God labels everyone who gets a divorce an adulterer:

But I say to you that everyone who divorces his wife, except on the ground of sexual immorality, makes her commit adultery, and whoever marries a divorced woman commits adultery.

And in the old testament, God shows that he does not care for adulterers:

If a man is found lying with the wife of another man, both of them shall die, the man who lay with the woman, and the woman. So you shall purge the evil from Israel.

Kim Davis has been divorced three times. In the eyes of her God she is no more sexually clean than homosexuals. Indeed, the commandment against adultery is in the big ten, which implies that it is far more important than the commandment against homosexuality.

Kim Davis could respond by arguing that she was wrong to get divorced, and that the government should not have allowed this to happen, but that two wrongs do not make a right. However, Jesus himself explicitly claimed that even adulterers should not be interfered with by society:

They said to him, ‘Teacher, this woman has been caught in the act of adultery. Now in the Law Moses commanded us to stone such women. So what do you say?’ This they said to test him, that they might have some charge to bring against him. Jesus bent down and wrote with his finger on the ground. And as they continued to ask him, he stood up and said to them, ‘Let him who is without sin among you be the first to throw a stone at her.’

This implies that not only is Kim Davis not morally different from the homosexuals she persecutes in the name of God, but that the appropriate social response is to permit both the adulterers and the homosexuals to sin.

So even from a Christian standpoint, there is a very good argument that Kim Davis’ actions are wrong and that she is no better than a homosexual. Indeed, she might be significantly worse than two homosexuals who do not have sex before marriage and then never commit adultery.

But this is all pretty straightforward. What I find more interesting is the way that many gay marriage proponents have opposed Davis. While Davis’ position can easily be subjected to scrutiny, many people have chosen to focus on Davis’ methods, accusing her of failing to carry out her constitutional duty or of failing to do her job. Under #DoYourJob, people are criticizing Davis for failing to put her personal beliefs to the side. Here are a few examples:

This is an interesting move, because most of these people posting these images do not really believe that people should always do their jobs no matter what they believe. We as a society made this very clear earlier this year when we sentenced 93-year old Oskar Groening to 4 years in prison for doing his job.

What was his job? Groening counted and sorted the money taken from prisoners at the Auschwitz death camp. By convicting him of being an accessory to genocide and sentencing him to prison, we are implicitly saying that Groening should have refused to do his job, even at the risk of imprisonment or execution by the government.

If Kim Davis had refused to help the government murder innocent people, many of us would have lauded her actions even though she would be failing to do her job. Before racial segregation was ruled unconstitutional, police officers who refused to enforce Jim Crow laws were guilty of failing to uphold the constitution–they did not do their jobs. But we would find such people courageous and admirable, even heroic. Kim Davis is no hero, but she is no hero not because she is committing civil disobedience, but because she is committing civil disobedience for an unworthy cause. It can sometimes be good and just to violate the law to fight against injustice, but it is never good or just to violate the law to perpetuate injustice. Kim Davis is repugnant because she violates the law to perpetuate wrongs.

One of the messy things about civil disobedience is that it always involves a moral decision by an individual that the laws of the land are so clearly morally wrong that they must be opposed even at the risk of imprisonment or even death. Sometimes individuals get those moral decisions right, but oftentimes they get those moral decisions wrong. In the United States, we used to have laws against sodomy until some gay people deliberately broke the law in an effort to expose and challenge this injustice. That act of civil disobedience was noble, constructive, and good. But if instead people had sex with helpless children in defiance of the law, we would not find anything admirable about that act of civil disobedience. It’s all a matter of whether or not we believe the cause is just. So let’s not beat around the bush. The question is whether the end justifies the means. If the end is good, civil disobedience can potentially be good. But if the end is bad, civil disobedience will make things worse. If we’re going to break the law for political or moral purposes, we’d better be really sure we’re right. Many people have strong personal beliefs that are wrong, and our legal system has to punish them for breaking the law even though their actions are motivated by a genuine, heartfelt moral convictions.

Kim Davis’ actions are repugnant and despicable not because they are acts of civil disobedience but because they are in the service of a repugnant and despicable cause that harms millions of LGBTs across the country. If we lose sight of that and concentrate instead on her methods, we end up being hypocrites too.