http://www.huffingtonpost.com/stanley-fish/the-case-for-kim-davis_b_8109590.html
The Case for Kim Davis
By Stanley Fish
Davidson-Kahn Distinguished University Professor and Professor of Law at Florida International University; Floershimer Distinguished Visiting Professor of Law at Cardozo Law School
Huffington Post
Posted: 09/09/2015 9:05 am EDT
Updated: 09/09/2015 2:59 pm EDT
In much of the mainstream media Kim Davis's case is regarded as cut and dried: She sought an office that requires its holder to license marriages according to the law; the law now recognizes a union between persons of the same sex as a valid marriage; when Davis refuses to issue licenses to same sex-couples because according to her religion marriage is a union between a man and a woman, she puts herself above the law she has pledged to uphold and carry out; end of story.
But it's not that simple. When federal judge David Bunning declared that people cannot be allowed "to choose what orders they follow" just because their conscience tells them to -- religious faith, he said, "is not a viable of defense" -- he was signing on to Justice Antonin Scalia's reasoning in Employment Division v. Smith (1990). Two Native Americans who had been denied employment compensation benefits because they had ingested peyote during a church ceremony claimed an exemption from the law governing controlled substances; their behavior, they argued, was protected under the First Amendment's guarantee of the free exercise of religion. Scalia responded by citing Reynolds v. United States: "To permit this would be to make the professed doctrines of religious belief superior to the law of the land." Democratic government, Scalia added, "must be preferred to a system in which each conscience is a law unto itself."
Although these sentiments have the sound of common sense, they were received in 1990 as "a revolution in Free Exercise jurisprudence" (Steven Gey, Religion and the State) because they went against a then-established tradition of deferring to religiously inspired action even when it conflicted with a generally applicable law. Sherbert v. Verner (1963), for example, turns on the denial of unemployment benefits to a Seventh Day Adventist because she declined work that required her to show up on Saturdays. Lower courts upheld the denial, but the Supreme Court reversed it, holding that no one should be forced to choose between "abandoning one of the precepts of her religion" and securing a job; the burden on free exercise is just too great. (Hello, Kim Davis.)
Obviously, these two decisions (and there are many more on either side of the divide) offer different templates for determining how to think about Kim Davis: from the perspective of Smith, Judge Bunning got it right; from the perspective of Sherbert, the state should find a way to accommodate Davis's deeply held beliefs and not exact as the price for adhering to them her employment and her physical freedom. (She has now been released, but after having been jailed for six days.)
What makes things so sticky is that the conflict between these two perspectives is built into the free exercise clause itself: Congress shall make no law prohibiting the free exercise of religion. The question (and it is a question that cannot be answered by just parsing the text) is, What does it mean to freely exercise one's religion? Scalia gives one answer in Smith when he draws a line between the having and expressing of religious convictions and the conduct a believer might engage in because she thinks those convictions command it. In his view, free exercise extends only to the thought and expression part; "otherwise prohibitable conduct" is not saved, he says, merely because it is "accompanied by religious convictions."
But this severe take on the matter raises the question of why there is a free exercise clause in the first place. If thinking and publishing religious thoughts is what is being protected, the free expression clause of the First Amendment takes care of that already. Why have an additional clause unless it is to protect something additional, and what could that something additional be except the actions that follow necessarily in the eyes of the believer from the beliefs she is committed to? Many who agree with Bunning's ruling say that Davis is still free to practice her religion, but that is only so if "practice" is confined to the circuit between her heart and her God (and there are religions whose duties are so confined). But if practice extends to the deeds that are for her the expression and confirmation of her faith, the prohibition or criminalization of those deeds will be an abridgment of her freedom because it is a burden on her free exercise.
If the free exercise clause is strongly interpreted to include actions as well as thoughts, the clash between religious and legal imperatives is inevitable. Nor can conflict be avoided by an act of compartmentalization, by saying you can order your private life in the home or the church as you like, but when you act in the public square you must conform to the civil norms enacted by a legislature. This familiar distinction (given canonical form by John Locke in his Letter Concerning Toleration, 1689) seems neat, but just underneath its surface is the tension it claims to outflank. Just ask yourself, how will the boundaries between the private and public spheres be established? Who will draw the lines? The answer will always be "the state," and that answer puts the state in the business of determining what does and does not fall within the scope of religion. It is hard to see how that can legitimately be the state's prerogative: What enables a civil magistrate to be the arbiter of religious doctrine and the policeman of its territory?
One might try to finesse the dilemma by invoking the oft-cited biblical verse "Render unto Caesar what is Caesar's." But that raises the question of "What after all belongs to Caesar?" -- a question that cannot be answered by Caesar without making him the head of the Church, as he has been in some societies, but not in ours. When what Caesar requires speaks only to the maintenance of good civil order, the believer will have no trouble acquiescing; but when what Caesar requires is the commission or condoning of sin (a distinction without a difference), the believer who acquiesces is in danger of harming her immortal soul. That is how Kim Davis sees it, and no secular reason -- no reason derived from a world view in which God has been eliminated or kicked upstairs -- is going to persuade her to see otherwise.
Years ago Justice Potter Stewart famously said that the refusal to permit religious exercises in the public schools should be understood "not as the realization of state neutrality," but as "the establishment of a religion of secularism" (dissent in School District of Abington v. Schempp, 1963). What Stewart sees (but doesn't quite say) is that neutrality is secularism. A state that declares itself neutral toward religion -- will not pronounce on it one way or the other -- is a state that has taken religion off the political table and effectively neutered it while pretending to be indifferent to it. "We won't say yes or no to religion" means that we will operate independently of its perspective; it means, in effect, that we say no to it. It is in the end impossible for the secular state to be fair to religion, not only because fairness is not what religion demands -- it demand precedence -- but because fairness is a secular value whose invocation always marks the marginalization and downgrading of religious interests in favor of the interests the state has identified as primary. Just ask Kim Davis.
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http://www.huffingtonpost.com/stanley-fish/the-case-for-kim-davis-part-two_b_8135136.html
The Case for Kim Davis: Part Two
By Stanley Fish
Davidson-Kahn Distinguished University Professor and Professor of Law at Florida International University; Floershimer Distinguished Visiting Professor of Law at Cardozo Law School
Huffington Post
Posted: 09/14/2015 8:05 pm EDT
Updated: 09/14/2015 8:59 pm EDT
The responses to my column "The Case For Kim Davis" are for the most part thoughtful and raise important issues. I say "for the most part" because I want to set aside as not in the ballpark comments like, "Religious beliefs are absurd in the first place," or, "All religion is fiction." Those who make statements like these or deride religion as a vestige of medieval ignorance (actually, the Middle Ages were enormously sophisticated) announce that they can't take the Kim Davis matter seriously -- they can't take seriously the dilemma of someone who finds her legal and contractual obligations in tension with her obligations to God. It is as if someone invited into a discussion of the Common Core curriculum were to say, "I don't believe in education." He would not be contributing to the discussion, but trashing it in advance, and the genuine participants in the conversation would be within their rights to say (as I say now to the religion-haters), 'Well, you've opted out so go sit in your corner and be quiet.'
I am not so ready to dismiss those who regard religion as a hobby (like stamp collecting or bungee jumping) or an ornament (there's all that nice music and those gorgeous vestments) that is perfectly alright if it keeps its place, but something that must give way to more serious things like the rule of law. It is not that those who think this way don't take religion seriously; rather they take seriously a truncated, diminished version of it -- a version that keeps it safely sequestered in large buildings open mainly on Fridays, Saturdays and Sundays -- and become very nervous when a more robust version of religious practice comes to the fore.
A good example is the commentator who declares that, "The problem comes when religion goes off the rails by requiring its disciples to believe in things that are contrary to the democratic goals of freedom and fairness." I would rephrase this to read, "The problem comes when religion stays on the rails of the track it is commanded to ride and refuses to switch onto the track of an alternative authority and prefer a rival's values to its own." Freedom and fairness are prime values in a vision of political life that has at its center the exaltation and protection of individual rights; it is not so much the choices individuals make that are honored but their capacity to make them. A rights regime -- and that is what the liberal state is -- is largely indifferent to the content of the rights being exercised and cares only that, when exercised, they leave room for the exercise of those same rights by others.
In contrast, religion's prime value (and here I'm talking about the theistic religions like Christianity, Judaism, and Islam) is obedience. The individual believer is not free to choose her own way and follow her own path; she must adhere to the path set out for her by a supreme, supra-human authority; she must keep to the way another has established. ("I am the way, the truth and the life.") She cannot cast off the tenets of her religion when they conflict with worldly mandates. She cannot, that is, exercise her religion intermittently, on weekends and sacred holidays, and dance to secular tunes for the rest of the time.
Yet some want Kim Davis to do this. They say that her religious freedom has not been burdened because she can still believe what she wants and worship where she wants. They say she has the right to believe what she believes (thank you very much!), but "not to act on her beliefs." They say that Judge Bunning's ruling did not outlaw or discourage her religious practice. They say that "religion is a personal matter." They say that "religious beliefs are best practiced at home."
These declarations, culled from the comments (and there are many more like them), amount to a secular pronouncement on the proper scope of religious belief and practice: The practice is proper when it is confined to thoughts or to rituals acted out in the church and the home; the practice is proper when it remains personal -- a transaction between Davis and her God -- but not when it spills over into actions performed in the public square. Restricting religious exercise in this way makes it manageable by the liberal state, which can display its liberality by quarantining practices it doesn't take seriously in safe places where they pose no threat to the state's hegemony.
But what do you do with those who, because they adhere to a religion that does not recognize the private-public distinction, decline to leave their religious convictions at home when they venture out into the world? Well, you can demonize them, as some of the respondents to my column do, or you can say, 'Well, this is not my cup of tea, but nevertheless a significant number of my fellow citizens drink from this source, and perhaps we should find a way to accommodate them without turning our republic into a theocracy.'
Note that accommodation does not mean acceptance of religious tenets or even a deep understanding of why some hold to them so fiercely. You can remain puzzled by what appears to you to be baseless zealotry; you can even be incredulous in the face of obdurate commitments to something for which there is no empirical evidence. But you ought not to doubt the sincerity of those who hold such commitments or demand that fidelity to them only take the form sanctioned by secular values. You might decide that flexibility tempered by generosity is the better path.
That may be well and good (the reply would come), as long as these "sincere" religionists do not impose their beliefs on others. This is the key complaint against Davis's stance and actions: She is forcing citizens of Kentucky who seek marriage licenses to conform to her religious convictions, and by doing so she is establishing a state religion in violation of the First Amendment. But in fact she's doing nothing of the kind. She is trying to live out her faith and she finds her efforts toward that end frustrated by the requirement that she issue marriage licenses to same-sex couples. It is not that she wants to stop them from getting married; she just doesn't want to be associated with it.
She and her lawyers ask only that when the licenses are issued, they bear neither her name nor the name of her office. As UCLA law professor Eugene Volokh explains, Davis was not satisfied with Judge Bunning's plan to have the licenses handled by her deputies because under that arrangement the licenses and certificates "are still being issued (in her view) under her ostensible authority, even though Davis has not authorized them." In short, as Amy K. Hall observes, "her goal is not to impose her views on people trying to obtain licenses, although that was the unintended consequence while no licenses were being issued." (It might be said that whatever her goal, those who do not receive licenses are inconvenienced, but that could also be said of Davis who is inconvenienced, and more, when the state, with no intention to burden her faith, requires her to do something that in her view violates it.)
But isn't the fact that she is an elected official mean that an accommodation is not available to her and that her choice is either to do her duty or resign? This is the second most voiced complaint against Davis's position and also against my citing of cases that involve accommodations given to private persons. Again the answer to the question is "no." It is true that under Title VII of the federal Civil Rights Act elected officials cannot receive religiously-based exemptions, but as Volokh points out, Kentucky, like a number of other states, has a state Religious Freedom Restoration Act, and these statutes do not rule out "accommodation claims by elected officials."
Of course the claim is not automatically granted and could be denied if a court determined, for example, that requiring Davis to issue licenses did not in fact substantially burden her religious exercise. That essentially is what the federal district court in Kentucky determined, reasoning that because Davis "may continue to attend church twice a week, participate in Bible Study and minister to female inmates," her religious activities have not been curtailed. But as I argued earlier, this is an impoverished view of religious exercise that reflects the liberal refusal to take religious faith seriously except as something you attest to in private where it doesn't bother anybody.
Under a more robust view in which her duties involve more than church attendance and charity work and extend to doing (or refraining from doing) work in the world, the burden on Davis could be said to be considerable. Here is Volokh making just that point: "If Davis believes that it's religiously wrong for her to issue licenses with her name on them, ordering her to do that indeed burdens her religious beliefs" and giving her a modest exemption (one that did not unduly impair the work of the clerk's office) might "indeed be required by the Kentucky RFRA." (And it won't do to argue that she's not condoning anything by affixing her name; that's for her, not an outside monitor, to decide, and she has obviously decided, in accordance with the First Amendment category of "compelled speech," that she doesn't want even the appearance of signing onto a practice she believes to be sinful.)
There are a lot of "mights" and "coulds" here, and it is by no means certain either that Davis will receive an exemption or that she should receive one. That is a question for the courts, which must draw the appropriate lines. But it is a real question and that's all I've been saying in these two columns: There is a case for Kim Davis to be made, and while that case may not prevail, it is not frivolous or absurd or outrageous or entirely without merit as some who have posted here maintain.
This brings me to a final point. Some posters castigate Davis for being self-righteous; but if there were a self-righteousness competition, Davis's critics would win it hands down.
