Salon magazine celebrated when Megyn Kelly of Fox News caught Presidential candidate Ben Carson off guard with a relatively easy question about Kim Davis’s conscientious objection to same-sex marriage. Mrs Davis, a Kentucky wedding clerk, has argued that her Christian faith should exempt her from having to sign marriage certificates. But Ms Kelly wondered:
Detractors might say that this is a slippery slope. Catholics might want to refuse to marry people who have been divorced, or Muslims might refuse to marry people who want to marry Christians — where does this end?”
Carson’s answer was a little disjointed and seemed to boil down to the hope that legislators could find their way around such problems. It is surprising that he did not have a prepared answer to a surprisingly common objection to religious freedom. Where will it all end? Should Muslims who refuse to sell alcohol or non-halal meat be able to keep their job at the checkout? If a Christian baker can refuse to bake a cake for a same-sex wedding ceremony could he not refuse to bake for homosexuals in general?
Such knee-jerk objections have not taken account of the mature case for freedom of religion (or current US law!) Government and employers should endeavour not to force anyone to violate a central aspect of their faith or world-view. Furthermore, freedom of religion should not merely protect the religious; it should aim for a principled pluralism which accommodates secularist worldviews. After all, the “free-thinking” tradition is centuries old and is worthy of respect. But no-one is arguing that believers and non-believers should be given a blank cheque to behave as they like when the law clashes with their beliefs.
To be exempted from legislation, for example, it is conceded that a claimant would need to demonstrate that it substantially burdens a sincerely held religious belief; furthermore, Saints and Sceptics believes that she should show that this belief plays an important role in her community or tradition [1]. Laws protecting freedom of religion need not tolerate idiosyncratic, wilfully absurd or dangerous beliefs for to do so would undermine respect for religious freedom. Finally, a government should be able to compel citizens to go against their consciences when it can demonstrate that it has a clear, compelling interest in doing so.
So, to use a crude illustration, a Christian could not claim a right to violently beat their children because the Bible says “spare the rod, spoil the child.” This is not only because such behaviour would be in breach of the nation’s criminal code; it is also because the government has an interest in promoting and protecting freedom of thought and such freedom cannot exist where individuals are subject to intimidation. Furthermore, “sparing the rod” is hardly a central Christian belief. It is a proverb, not a command. It is not part of Jesus’ teaching, or the teaching of the apostles. It does not feature in Christian creeds or confessions.
Every government has a clear and compelling interest in upholding its criminal code or collecting taxes. A Christian could not claim the right to refuse to serve a customer simply because of that person’s sexual orientation or religion or nationality: it may be defamatory to suggest that traditional Christian ethics call for that sort of discrimination. In any case, the government would have a compelling interest to intervene if any minority faced widespread, systematic and far-reaching discrimination. But there is no compelling state interest in forcing religious citizens to provide goods and services which promote or condone practices they strongly disagree with; especially when asking a customer to seek the goods or services elsewhere would not create a substantial burden for the customer. Laws should protect believers from civil suits when they are asked to provide a service which would conflict with important religious convictions.
Similar principles apply to employers. Generally, they should have a duty to accommodate an employee’s important religious beliefs when doing so would not place excessive financial burdens on the business. What about the Muslim employee who does not wish to serve alcohol -should the law protect their job? Simply put, yes, but only if this would not substantially burden their employer. If it would be easy to send someone else to the till and the Muslim could be given different duties, then the Muslim should be accommodated. But rights must be balanced – after all, the employer also has values and convictions. If there is no-one else available to sell alcohol, for example, then the employee’s job should not be protected. And if the Muslim works as a bar tender, there really is no case for the employer to answer.
So what of Kim Davis? Should the law have protected her from prosecution? Contrary to popular belief, she accepts that her office should issue marriage certificates according to the law. She merely argues that the authorities have not made reasonable adjustments to accommodate her conscientious objections to same-sex marriage. Specifically, Mrs Davis sincerely believes that her signature on a marriage certificate would signal her personal approval of that marriage.
Under the criteria described above, she would need to show that this proposition is central to her faith. Now -as Dr Carson should have told Miss Kelly – beliefs about sexual ethics are central to a community and to a person’s way of life; furthermore beliefs about the purpose, essence and definition of marriage are prior to beliefs about who can benefit from that institution. But ,arguably, it is not Mrs Davis’s belief about the nature marriage that is being burdened . Rather, it is her belief that her signature on an official form signifies her personal consent.
It is not clear that the church has ever taken a position on the moral implications of an official’s signature on a wedding certificate; nor is it obvious what such signatures really signify. Many people have a deal of sympathy for Mrs Davis; but as The Economist argues:
[I]ssuing licences to pairs of men or women who want to get hitched would not imply her moral approval of their unions. It would signify only that the couples had met the legal requirements for marriage.”
This seems like a fair point. Suppose Mrs Davis had placed her signature on a certificate which licensed two divorcees to remarry; we could infer nothing about her theology of divorce and remarriage. If a man and a woman declared that they would have an open marriage we would not censure Mrs Davis for signing the wedding licence. However, few doubt Mrs Davis’s sincerity and it seems her advisers were more interested in challenging the state than in a detailed examination of her conscience. Mrs Davis’s willingness to go to jail offered a golden opportunity to defend freedom of religion against secular orthodoxies.
Using the methods of civil disobedience, the aim was to confront a hostile authority and provoke it into overreacting; to seek the sympathy of formerly neutral spectators and to take away their opponent’s moral authority. Such tactics require a considerable degree of courage – which Mrs Davis clearly demonstrated. Once it was established that a sincere believer would rather be jailed than violate her conscience the federal government was forced to seek an accommodation: marriage licenses were altered so that “Rowan County” rather than “Kim Davis” appeared. This was a remarkable success and it could provide a foundation for other compromises between religious believers and a secular state.
But if this opportunity is not to be wasted shrewd media management remains essential. Too many people still think that Christians are fighting for special privileges so that they can impose their beliefs on others. And there are other, more worrying, concerns. Freedom of religion requires broad support, so it would be regrettable if Mrs Davis became too closely identified with partisan political figures. Nor is it comforting to hear that the Oath Keepers have taken an interest in her case (a previous article on Saints and Sceptics warned that culture wars can quickly slip out of control).
Without a little more care, the integrity of Mrs Davis’s case will be lost in a cacophony of political rallies, triumphalist speeches and Hollywood soundtracks.
————————————————————————————————————————-
[1] It is worth noting that we would place a greater burden on the individual religious believer than current US law. See “When Does Your Religion Legally Excuse You From Doing Part of Your Job?”, Washington Post, Sept 4 2015. Following Roger Trigg and others, we would place more emphasis on defending religious communities and traditions; American law seems more interested in protecting the individual conscience.