Kentucky clerk Kim Davis civil disobedience
Image: White House Press Office

Has Kim Davis, the Rowan County clerk in Kentucky who refused to issue marriage licenses to same-sex couples, engaged in a defensible act of civil disobedience, or is she a civil servant refusing to honor her oath of office?

In June, Kim Davis stopped her office from issuing all marriage licenses in an attempt to avoid issuing a license to any otherwise qualified same-sex couple who applies. Two other Kentucky county clerks have taken similar action. Davis claims that to issue a license to same sex couples would violate her Christian beliefs. And it might, at least, be a violation of her interpretation of Christianity.

Does that, however, make it civil disobedience? To the Christian right media, it most definitely does. American Family Radio commentator Bryan Fischer heralded Davis’s actions as comparable to Nazi resistors or Civil War abolitionists. John Montgomery, a member of the editorial board of the Hutchinson News in Kansas, includes Davis with members of religious groups like the Amish, Mennonites, and Unitarians who object to warfare because Jesus was also so opposed.

Part of the difficulty in deciding if Davis’s refusal elevates her action to the level of civil disobedience is that the term itself has no strict definition. Narrowly thought of, the term “civil disobedience” has been applied to civilians who refuse to obey certain laws as a nonviolent means of protest. One of the earliest users of the phrase was essayist Henry David Thoreau who in 1849 penned “Civil Disobedience,” justifying the refusal of citizens to comply with government directives. In that article, Thoreau famously declared that “The government is best when it governs least.” Thoreau, however, also argued that those engaged in civil disobedience should be prepared to face the consequences of their actions, including paying penalties and even imprisonment.

In the twentieth century, both Mahatma Gandhi and Martin Luther King, Jr., by virtue of their involvement with movements hallmarked by civil disobedience, expanded the definition beyond refusal to fight in wars to refusals to obey laws they deemed morally unjust. Note, however, that in each instance,  individuals who chose to engage in civil disobedience had nowhere pledged to uphold the laws they were now choosing to disobey. This is an important distinction in the case of Kim Davis.

When Davis was elected Rowan County clerk in 2014, assuming a post her own mother had held for 25 years she said, “ I am so humbled and feel so blessed that the people put so much confidence in me,” said Davis. “My words can never express the appreciation, but I promise to each and every one that I will be the very best working clerk that I can be and will be a good steward of their tax dollars and follow the statutes of this office to the letter” (my emphasis).

Further, it cannot be argued that Ms. Davis did not understand what her new position entailed. On her page of the Rowan County Government website, Davis states that “As county clerk I am responsible for providing many services to the people of Rowan county. These duties include general categories of clerical duties of the fiscal court: issuing and registering, recording and keeping various legal records, registering and purging voter rolls, and conducting election duties and tax duties.”

It is difficult to imagine it escaping her notice that there was a national firestorm swirling around the issue of same-sex marriage or that at some point, sooner rather than later, she would come face-to-face against it in her public office. Nor can one picture her not knowing that it is a class A misdemeanor (which translates into first degree official misconduct) in the state of Kentucky for an elected official to refuse to perform the duties of office.

Not only has Davis refused to perform her duties, she has also refused to follow the directives of Kentucky Governor Steve Beshear who issued a statement to all clerks in the state reminding them that they had sworn to uphold the laws of the land. And Davis has also chosen to ignore a Federal District Court judge who ruled against her claim that she was protected from performing duties which were against her religious conviction. And finally, she has even chosen to defy the U.S. Supreme Court, which refused to hear her appeal.

But does the oath Kim Davis took to uphold the Constitution fall at the feet of her Christian beliefs, as she defines them? For an answer, let’s turn to Supreme Court Justice Anton Scalia, the longest serving of the current judges and a self-proclaimed “originalist”—in other words, he attempts to interpret the Constitution as its authors originally intended it. In 2002, for the religion and public life journal, “First Things,” Scalia argued that “if he were to conclude that the death penalty were fundamentally immoral, he should no longer serve on the bench.” Paraphrasing his thought, it seems that his oath—his pledge to interpret the law as it is written—would supersede his personal moral beliefs. If he could not serve his oath, his only alternative would be to resign.

Carly Fiorina, a Republican presidential candidate, framed the Davis issue in terms of employee obligation: Fiorina said that if a government employee (which Davis is) agrees to act as an arm of the government, making a decision of conscience against performing her duties is “inappropriate.” Fiorina suggested that Davis seek employment in the private sector.

Regardless of what happens next, this much is clear. Davis may have strongly held beliefs pertaining to same-sex marriages, as is her right. It is not her right, however, to hold a government position in which she uses those beliefs as an excuse not to perform her duties. She’s in the wrong, and she may be going to jail because of it.

Update: Thursday morning, September 3, 2015, Kim Davis was called before U.S. District Judge David Bunning in Ashland, Ky. Bunning found Davis in contempt of court and remanded her to jail until such time as she agrees to comply with the Supreme Court’s order to issue marriage licenses to all otherwise qualified couples.