Conscience Clash and Double Standards in Kentucky

Mere sloth or personal corruption is something people live with all the time; it’s the moral challenge that people can’t tolerate

I’m in no position to judge the case of Kentucky County Clerk Kim Davis, so you’ll have to look elsewhere for the latest hate-mongering or hero worship of her. Allow me to begin, rather, with this statement by the late Avery Cardinal Dulles from a 1998 article in the Jesuit magazine America:

Any effort by a church to say what is morally permitted, required or prohibited by the law of God in the spheres of politics, medicine, business or family life is resented as an intrusion into alien territory…. Anyone who sees religion as determinative for secular activities is likely to be regarded as a fanatic. Teachers, businessmen, politicians or judges who let religion impinge in a major way on their professional activities are considered eccentric.

I think we’ve moved from “likely to be regarded as a fanatic” to “definitely will be regarded as a fanatic” and from “eccentric” to “illegal.”

As many commentators have pointed out, there was no prison for public officials who elevated their personal moral judgments above their duty to uphold the law when the shoe was on the other foot: not in 2004, when then-San Francisco Mayor (now Lieutenant Governor) Gavin Newsom ordered city clerks to issue marriage licenses to same-sex couples when gay marriage was prohibited in California; not when then-State Attorney General (now Governor) Jerry Brown chose not to respond to legal challenges of California’s Proposition 8, which declared that “only marriage between a man and a woman is valid,” even though one of Brown’s responsibilities as attorney general was to defend California’s laws in court; not when Montgomery County (Pa.) Register of Wills D. Bruce Hanes issued a marriage license to a same-sex couple despite Pennsylvania’s ban on gay marriage; not when Illinois Attorney General Lisa Madigan refused to defend the state’s marriage laws in court, requesting instead that her office be allowed to join in two lawsuits challenging the laws of her own state; not when Attorney General Eric Holder refused to defend challenges to the Defense of Marriage Act signed by President Bill Clinton in the courts, even though it was his duty as Attorney General to do so.

We might wish to distinguish between those who simply refused to act as the duties of their office demanded as opposed to those who acted contrary to the law, on the presumption that merely refraining from acting is not as grave a violation of public order as an active violation of the law.

We might do that, except: (A) none of the people above, whether they acted or refrained from acting, was prosecuted or jailed or forced to resign his or her job; (B) Kim Davis has been jailed merely for refusing to act; and (C) the mainstream media have clearly decided that, if Kim Davis felt she couldn’t carry out all her duties, then she should have resigned. So too Jerry Brown? Lisa Madigan? Eric Holder?

One of those “tweets” that people so love these days—which seem to serve the same purpose that bumper stickers did in a previous generation (“Keep Your Rosaries Off My Ovaries”) or poster slogans did before that (“Workers of the World Unite,” “Ein Volk, Ein Reich, Ein Fuhrer”)—reads: “No one’s being jailed for practicing her religion. Someone’s being jailed for using the government to force others to practice her religion.” So are people who use their public positions to force their moral views on others acceptable as long as those views aren’t religious?

We’ve come a long way from the days of Martin Luther King, Jr.

There is simply no getting around the fact that there is a fundamental moral disagreement here. And it is precisely when a person’s refusal to obey is based on a moral conviction that the opposing side finds their refusal so galling. How many public officials in the country keep their jobs year after year even though they fail to uphold all the tasks and duties of their job? Mere sloth or personal corruption is something people live with all the time; it’s the moral challenge that people can’t tolerate.

And it is precisely because there is a moral disagreement that one party approved of acts of civil disobedience when favored the side they favor. Now that the Supreme Court has decided for the whole country what “marriage” must henceforth mean, those same parties have made clear they will not tolerate similar acts of civil disobedience by their opponents. When the law goes against our side, we lionize acts of civil disobedience. But when we have the power, we set the lions on those who engage in similar acts of civil disobedience.

I’m aware that the standard line in the Kim Davis case (as in other, similar cases) is that, if she felt she couldn’t carry out all the obligations of her job (as those duties have fairly recently have been re-defined by the federal judiciary), then she should have just quit. Why didn’t she? To be honest, I have no idea. I suppose you would have to ask the same question of Eric Holder, Lisa Madigan, and Jerry Brown. And I suppose you’d have to ask the same question of the public officials in the North in the 1850s (sheriffs, marshals, and judges) who refused to uphold the duly-enacted Fugitive Slave Laws and the Supreme Court’s decision in Dred Scott making it “the law of the land” that black slaves could be claimed as “property” even when they had taken up residence in a free state. I suppose at least some of these public officials decided the state could ask them to do many things, but not something they considered morally wrong: that the state’s “sovereignty” extended only so far and no further.

Demands for a public official’s resignation are not an uncommon response to acts of civil disobedience and yet are strange in an age so devoted to personal freedom. Why, for example, should a doctor or nurse or pharmacist’s freedom to choose not to do an abortion or provide an abortifacient drug or participate in euthanasia be trumped by a patient’s desire to have any of these things, especially if the patient can get them elsewhere? Why should the refusal to participate in this one act that he or she considers morally wrong disqualify him or her from holding a job in the medical field, especially when he or she considers the act to be contrary to the very obligations he or she has pledged to uphold?

The answer is that we in the modern world have developed a paradoxical relationship with “freedom”, especially as freedom has become more and more untethered from “truth” and increasingly seen only in relation to “autonomy”. When everyone sets out to exercise their “right to define their own concept of existence, of meaning, and of the universe”, the results can be gruesome if a significant number of people haven’t decided that their “concept of existence” should meaningfully include respect for other people. The result can be anarchy: what the political philosopher Thomas Hobbes called “the war of all against all”, wherein life becomes “solitary, poor, nasty, brutish, and short.” Thus running right alongside the culture’s demand for greater and greater “autonomy” is often an equal and opposite demand for “order” and “obedience.”

Immanuel Kant, for example, in a famous essay entitled “What is Enlightenment?”, argued that “enlightenment requires nothing but freedom”, especially the “freedom to make public use of one’s reason in all matters.” Sounds nice. And yet in the very same essay, Kant argued that, in certain circumstances, “the use of reason may frequently be narrowly restricted without especially hindering the progress of enlightenment.” Sounding less nice? “In some affairs,” says Kant, those “affecting the interests of the community:

a certain [governmental] mechanism is necessary in which some members of the community remain passive. This creates an artificial unanimity which will serve the fulfillment of public objectives, or at least keep these objectives from being destroyed. Here, arguing is not permitted: one must obey….

And of course, there were plenty of Kant’s countrymen, German civic officials, who during the Holocaust did just that: they obeyed.

This is perhaps more than a little unfair to Kant. He believed (like many of us) that if a civic official were convinced that “he would not be able to administer his office with a clear conscience, he would have to resign it.” Some did. Unfortunately that just left all those same positions open to be filled with the sort of people they opposed. Would it really be so easy to wash one’s hands — and one’s conscience — clean? History’s judgment has not been especially kind to those who did.

Kant’s bifurcation between the “public” and “private” realms — the realm in which the freedom to speak according to one’s conscience is allowed and the other in which one must obey authority — has only fostered the psychological and moral fragmentation so characteristic of modern life. And it is this “fragmentation” of the psyche that disengages people from the sort of moral grounding we want them to have in public life. We shouldn’t want them to act against their consciences. What sort of public officials would we be left with if we did?

In Evangelium Vitae, Pope St. John Paul II’s left us with this warning:

we have [in modern political regimes] what appear to be two diametrically opposed tendencies. On the one hand, individuals claim for themselves in the moral sphere the most complete freedom of choice and demand that the State should not adopt or impose any ethical position but limit itself to guaranteeing maximum space for the freedom of each individual, with the sole limitation of not infringing on the freedom and rights of any other citizen. On the other hand, it is held that, in the exercise of public and professional duties, respect for other people’s freedom of choice requires that each one should set aside his or her own convictions in order to satisfy every demand of the citizens which is recognized and guaranteed by law; in carrying out one’s duties the only moral criterion should be what is laid down by the law itself. Individual responsibility is thus turned over to the civil law, with a renouncing of personal conscience, at least in the public sphere.

I am proud to live in a country where men and women have fought bravely in the military. But I am also proud that we have often made broad provisions for conscientious objection.

In the Second Vatican Council’s Declaration on Religious Freedom (Dignitatis Humanae), we read this:

On his part, man perceives and acknowledges the imperatives of the divine law through the mediation of conscience. In all his activity a man is bound to follow his conscience in order that he may come to God, the end and purpose of life. It follows that he is not to be forced to act in a manner contrary to his conscience.

“Freedom of conscience” sounds nice when we are asserting it as “right” for ourselves. It’s rarely as popular when it’s a “respect” we have to show to others with whom we disagree.

The essential questions we have to face are (1) whether we can accommodate our moral and political differences, and (2) what kind of society will we have if we force people in the spheres of politics, medicine, and business to violate their consciences or else lose their livelihood or their freedom?

Force people to cross that line, and you’ll not have a decent person left anywhere in public life.

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About Dr. Randall B. Smith 44 Articles
Dr. Randall B. Smith is Professor of Theology at the University of St. Thomas in Houston, Texas, where he teaches courses on Moral Theology, History of Theology, Faith and Science, and Faith and Culture. His books include Reading the Sermons of Thomas Aquinas: A Beginner's Guide (Emmaus), Aquinas, Bonaventure, and the Scholastic Culture of Medieval Paris (Cambridge), and From Here to Eternity: Reflections on Death, Immortality, and the Resurrection of the Body (Emmaus), due out in October 2022. He is also co-author of Why Believe? Volume 2: Answers to Life's Questions (Augustine Institute). Prof. Smith is the author of numerous articles in academic journals, but he also publishes a regular bi-weekly column for "The Catholic Thing."