A Philosopher's Blog

Same-Sex Marriage, Religious Liberty & Obedience

Posted in Ethics, Law, Philosophy, Politics, Religion by Michael LaBossiere on September 2, 2015

Kim Davis, a country clerk in Kentucky, has refused to issue marriage licenses to same-sex couples on the grounds that doing so violates her religious beliefs. When questioned about this, she has replied that she is acting “under God’s authority.” Some of those supporting her, and other clerks who have also decided to not issue marriage licenses, are contending that it would violate her religious freedom to be compelled to follow the law and do her job. This situation raises numerous important issues about obedience and liberty.

When taking a position on situations like this, people generally do not consider the matter in terms of general principles regarding such things as religious liberty and obedience to the state. Rather, the focus tends to be on whether one agrees or disagrees with the very specific action. In the Davis case, it is not surprising that people who oppose same-sex marriage tend to favor her decision to disobey the law and claim that she has a moral right to do so. It is also not surprising that those who favor same-sex marriage tend to think that she should obey the law and that it is morally wrong for her to disobey the law of the land.

The problem with this sort of approach is that it is unprincipled—unless being in favor of disobedience one likes and opposing disobedience one dislikes is a reasonable moral position. Moral consistency requires the application of a general principle that applies to all relevantly similar cases, rather than simply going with how one feels about a particular issue.

In regards to the situation involving Davis, many of her defenders have tried to present this as a religious liberty issue: Davis is being wronged by the law because it compels her to act in violation of her religious beliefs. Her right to this liberty presumably outweighs the rights of the same-sex couples who expect her to follow the law and do her job.

Having been influenced by Henry David Thoreau’s arguments for civil disobedience and by Thomas Aquinas, I agree that an individual should follow her informed conscience over the dictates of the state. The individual must, of course, expect to face the consequences of this civil disobedience and these consequences might include fines, being fired or even time in prison. Like Thoreau, I believe that a government official who finds the law too onerous should endeavor to change it and, failing that, should resign rather than obey a law she regards as unjust. As such, my general principle is that a person has the moral right to refuse to follow a law that her informed conscience regards as immoral.

In the case of Davis, if she is acting in accord with her informed conscience, then she has the moral right to refuse to follow the same-sex marriage law. However, having failed to change the law, she needs to either agree to follow this law or resign from her position.

That said, I am well aware that a person’s informed conscience can be in error—that is, what she thinks is morally right is not actually right. It might even be morally wrong. Because of this, I also accept the view that while a person should follow his informed conscience, the actions that follow from this might be morally wrong. If they are wrong, the person has obviously acted wrongly—but, to the degree that she followed her informed conscience, she can be justly excused in regards to her motivations. But, the actions (and perhaps the consequences) would remain wrong.

Since I favor liberty in regards to marriage between consenting adults (and have written numerous essays and a book on this subject), I believe that Davis’ view about same-sex marriage is in error. Though I think she is wrong, if she is acting in accord with her informed conscience and due consideration of the moral issue, then I respect her moral courage in sticking to her ethics.

While subject to the usual range of inconsistencies, I do endeavor to apply my moral principles consistently. As such, I apply these principles to all relevantly similar cases. As such, whenever there is a conflict between an individual’s professed moral views and the law she is supposed to enforce, I ask two questions. The first is “is the person acting in accord with her informed conscience?” The second is “is the person right about the ethics of the matter?” This is rather different from approaching the matter by asking “do I agree with the person on this specific issue?”

As noted above, some of the defenders of Davis are casting this as a religious liberty issue. In this case, the implied general principle would be that when an official’s religious views conflict with a law, then the person has the right to refuse to follow the law. After all, if religious liberty is invoked as a justification here, then it should work equally well in all relevantly similar cases. As such, if Davis should be allowed to ignore the law because of her religious belief, then others must be allowed the same liberty.

As might be suspected, folks that oppose same-sex marriage on religious would probably agree with this principle—at least in cases that match their opinions. However, it seems likely that many folks would not be in favor of consistently applying this principle. For example, consider the matter of immigration.

The bible is reasonable clear about how foreigners should be treated. Leviticus, which is most commonly cited to condemn same-sex marriage, commands that “The foreigner residing among you must be treated as your native-born. Love them as yourself, for you were foreigners in Egypt. I am the LORD your God.” Exodus says “”Do not mistreat or oppress a foreigner, for you were foreigners in Egypt” while Deuteronomy adds to this that “And you are to love those who are foreigners, for you yourselves were foreigners in Egypt.”

Given this biblical support for loving and treating foreigners well, a border patrol agent, INS official, or immigration judge could find easy religious support for refusing to enforce immigration laws violating their conception of love and good treatment. For example, a border patrol agent could, on religious grounds, refuse to prevent people from crossing the border. As another example, a judge could refuse to send people back to another country on the grounds that the bible says about treating the foreigner as a native born. I suspect that if officials started invoking religious freedom in order to break immigration laws, there would be little support for their religious liberty from the folks who support religious liberty in regards to breaking the law governing same-sex marriage.

To use another example, consider what the bible says about usury. Exodus says “If you lend money to any of my people with you who is poor, you shall not be like a moneylender to him, and you shall not exact interest from him.”  Ezekiel even classified charging interest as an abomination: “Lends at interest, and takes profit; shall he then live? He shall not live. He has done all these abominations; he shall surely die; his blood shall be upon himself.” If religious liberty allows an official to break/ignore laws, then judges and law enforcement personnel who accept these parts of the bible would be allowed to, for example, refuse to arrest or sentence people for failing to pay interest on loans.

This can be generalized to all relevantly similar situations involving law-breaking/ignoring officials who do so by appealing to religious liberty. As might be imagined, accepting a principle that religious liberty grants an official an exemption to the law would warrant the breaking or ignoring of a vast multitude of laws. Given this consequence, it would seem that accepting the general principle of allowing religious liberty to trump the law would be unwise. It is, however, wise to think beyond one’s feeling about one specific case to consider the implications of accepting a general principle.


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12 Responses

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  1. T. J. Babson said, on September 2, 2015 at 8:03 am

    “I suspect that if officials started invoking religious freedom in order to break immigration laws, there would be little support for their religious liberty from the folks who support religious liberty in regards to breaking the law governing same-sex marriage.”

    I think you are wrong here, Mike. This is essentially the position of the Catholic church.

  2. drewdog2060drewdog2060 said, on September 2, 2015 at 8:47 am

    As a registered blind guide dog owner, I have encountered business owners and service providers refusing to admit me due to the presence of my dog. In Islam dogs are considered unclean and some Muslims use this as a reason for refusing to admit assistance dogs, despite the UK Equalities Act stipulating that it is unlawful to refuse entrance to assistance dog owners when accompanied by their working animals. Religious liberty has not been considered by the UK courts to justify failure to admit assistance dog owners when accompanied by their working animals.
    The question arises as to who’s conception of a religion carries weight. The Muslim Council of Britain has explicitly stated that Muslim business owners should admit assistance dog owners when accompanied by their working dogs but, despite this I still face refusals (not all from Muslim owned businesses but most from them).
    The bible has been used to justify many things. Some South African (white) Christians justified Apartheid on religious grounds and certain fundamentalist Christians in the US hold that racial segregation is divinely sanctioned. I suspect where a “Christian” to refuse to marry a mixed race couple on the grounds of his (or her) religious beliefs, most of those who defend the right of clerks not to marry same sex couples would be loud in their condemnation of this racist behaviour and rightly so. Yet these same people defend the right to discriminate against same sex couples.

    • T. J. Babson said, on September 2, 2015 at 9:07 am

      Drewdog, is there an analog in the US to the Muslim Council of Britian? Does this entity get to decide what laws in the UK Muslims are supposed to obey and which they should not obey?

    • Michael LaBossiere said, on September 2, 2015 at 12:29 pm

      That is a good example (but I must admit I am biased towards dogs). One practical problem is that allowing religious exceptions would in many cases (as in your example) impose more severely on others than not allowing the exception. Another problem is that given the multitude of different religions and interpretations, the result would seem to be a chaos of exceptions.

  3. ajmacdonaldjr said, on September 2, 2015 at 8:49 am

    The question is “Who’s law?” and “What religion?” Until recently, law and religion in the USA meant natural law and Christianity. Now that those have been tossed aside, who knows where we will end up? The US government is modeled upon the Roman Empire. Perhaps we should require all civil servants to offer a small pinch of incense to Obama’s (or Bush’s, or Clinton’s) statue as a show of allegiance?

    • Michael LaBossiere said, on September 2, 2015 at 12:30 pm

      Allegiance to the Constitution should suffice.

      • ajmacdonaldjr said, on September 3, 2015 at 3:42 pm

        Too vague. Whose interpretation of the Constitution? SCOTUS? “[N]one of the [Roman] lawyers doubted that there is a higher law than the enactments of any particular state. Like Cicero, they conceived of the law as ultimately rational, universal, unchangeable, and divine, at least in respect to the main principles of right and justice. The Roman Law, like the English common law, was only in small part a product of legislation. Hence the presumption was never made that law expresses nothing but the will of a competent legislative body, which is an idea of quite recent origin. It was assumed that ‘nature’ sets certain norms which the positive law must live up to as best it can and that, as Cicero had believed, an ‘unlawful’ statute simply is not law. Throughout the whole of the Middle Ages and well down into modern times the existence and the validity of such a higher law were taken for granted.” ~ George H. Sabine, A History of Political Theory (Third Edition, Holt, Rinehart, Winston, 1937, 1950, 1961) pp. 169-170).

      • ajmacdonaldjr said, on September 3, 2015 at 4:59 pm

        “Western men, especially, believed in the efficacy of governmental action for the achievement of social and moral ends. Both Church and State ought to serve democracy. Democracy was one with the will of God and the natural law. It guaranteed a moral order and when men and misinterpretations of constitutions violated that order appeal to the higher law might be made.” ~ Avery Craven, The Coming of the Civil War (Chicago: University of Chicago Press) 1942; 1957; 1967; p. 130).

  4. TJB said, on September 2, 2015 at 12:00 pm

    Still no Oxford comma. I knew it had nothing to do with being faithful to C.S. Lewis.

  5. TJB said, on September 2, 2015 at 12:32 pm

    Democrats at work.

    Kim Davis sees a Democratic president and Secretary of State ignoring the law and naturally assumes the law only applies to non-Democrats.

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