Kim Davis and the ethics of workplace resistance

I hadn't planned to write a formal blog post about Kim Davis. I've gotten involved in several conversations about her on FB recently, mostly playing devil's advocate, and I thought probably that was enough--or even too much.

But then my beloved wife Jennifer complained that she didn't have anyone writing about Davis on the Patheos Faith and Work Channel, and I agreed to write a blog post here and have her repost it over there. So, with some misgivings, here goes.

I'm going to try to bracket the question of whether the Supreme Court's decision on gay marriage was the right one, but to be clear on my own biases, I'll start by saying that I don't think it was. More precisely, I don't think the word "marriage" can rightly be used to describe a union between two people of the same sex. At the same time, I support gay couples (and any other permanent, committed association among consenting adults) having legal benefits. The word "marriage" is clearly now used in a legal context to mean "a union that receives certain legal benefits," so I would not myself have a problem handing out marriage licenses if I were in Davis' position. Furthermore, many of the statements she has made both before and after her imprisonment are statements I would not endorse or support.

The question I want to focus on is this: given her convictions, is her decision to stay in office and refuse to issue licenses justifiable? Many people who share her beliefs (perhaps more fully than I myself do) argue that she should just resign. The common argument is that she is "refusing to do her job," and that if your job and your personal convictions conflict, the answer should be to give up your job.

I disagree with that position. For one thing, as this article points out, there are quite a few examples of local government officials defying "higher" government authority in the name of liberal causes, and liberals do not, generally, object to this. Arguably one could claim that these other cases were different because the courts had not definitively ruled. Mayor Gavin Newsom of San Francisco, for instance, issued marriage licenses in 2004, but stopped when the courts told him to. He then initiated a suit in state courts which led to a 2008 decision striking down the state law and allowing same-sex marriage in California. There are a number of similar instances of people challenging laws against gay marriage, as well as other laws generally disapproved of by liberals. I don't know if any of these cases involved defiance of court orders. Still, I think it's safe to say that people who agree with the SCOTUS decision on gay marriage condemn Davis not primarily for procedural reasons but because they believe what what she is doing is intrinsically wrong.

Thus, the question I want to address primarily concerns the argument made by many conservatives, who disagree with Davis' refusal to resign while applauding her substantive position. Conservatives sometimes point out that their own criticisms of liberal "lawlessness" (such as the examples mentioned above) ring hollow if they then applaud such actions when engaged in by someone on their own side. Conservatives are, in fact, generally more likely to appeal to "the rule of law" as an abstract principle that must be defended.  So the question before us is: should a person whose job conflicts with her convictions renounce the job?

It seems to me that it depends greatly on just what the conflict consists of. Many of the analogies people are making to Davis' situation are to situations where resignation would obviously be the right course. A person who took a job in an liquor store and refused to serve alcohol would be behaving unreasonably, for instance.

But such an analogy implies that, in fact, giving out marriage licenses for same-sex couples is an intrinsic part of the job of being a county clerk. It is certainly not the whole of her job. It is one particular part, and only became part of the job because of the recent Supreme Court decision.

Indeed, the Kentucky State Constitution has not yet been amended to eliminate the language saying that marriage must be between a man and a woman. Clearly under the currently prevailing definition of the powers and responsibilities of the judicial branch, a law that has been declared unconstitutional is automatically no longer binding. Whether or not that's the right way to view the question (and some conservative commentators argue that it isn't), it might seem reasonable to amend the state constitution before throwing people in jail for following it. The political reality is that there is little or no will to do this, or to impeach Davis. Hence, her opponents have to work through the court system.

All of this political complexity puts Davis' situation in a rather different light. Whatever the rights and wrongs of the various political actors, she is clearly not simply in the same situation as a person who seeks a job in a liquor store while refusing to sell alcohol, or even (the most commonly used parallel) a conservative Muslim of the Saudi variety who refuses to give drivers' licenses to women. Davis was elected under a state constitution that defined marriage as a union between a man and a woman. She swore to uphold that state constitution. The legal situation has changed under her, in a way that she considers illegitimate. Whatever the moral and legal rights and wrongs of the situation, this has to affect the question of whether someone with her convictions should resign or not.

If those convictions include the belief that the U.S. government ought to follow "Christian principles" (as hers clearly do), then the answer would seem to be "no." Davis is not an Anabaptist. Her "Apostolic" Pentecostal tradition certainly has roots in a quasi-Anabaptist withdrawal from governmental structures, but that doesn't seem to be where her community is today. In other words, for Davis simply to resign would be a tacit admission that the State is an illegitimate place for Christians to be. This is particularly cogent given the legal situation when she took her oath of office.

I therefore cannot join in the calls for her simply to resign as the obviously correct thing to do. I cannot condemn her, given her convictions, for remaining in her position until forced out and for accepting prison as a consequence of her intransigence. Whatever my other issues with her views and actions, I admire her for her stubbornness and her willingness to be a "squeaky wheel."

There is a further practical consideration here: we live in an age where efficiency is prized above everything else, and where institutions (governmental and otherwise) typically follow the path of least resistance. My own experience as a college professor taught me this the hard way. When my position was eliminated (as part of a very dubious set of financial decisions by the university), I listened to those who warned that I needed to appear desirable and unthreatening to potential future employers. I gave an interview to the student paper in which I bent over backwards to be meek and gentle about what had happened to me. I did throw in what I thought were some fairly obvious barbs against the poor priorities of the administration. But given the reaction, I apparently miscalculated. I was praised high and low for being "classy" and not showing resentment. My mild criticisms accomplished nothing. I wish now that I had been much more fearless and much more explicit. Institutions will proceed in their inexorable, complacent path unless wheels are very squeaky indeed. As C. S. Lewis once said, a few military officers court-martialed for refusing to bomb civilians would accomplish more than legions of conscientious objectors. If you believe that an institution rests on a fundamentally righteous foundation but is losing its way, then standing in the path of the juggernaut and letting it crush you is a nobler approach than jumping off.

At the same time, I can't help wishing--indeed, yearning--for such protests to be made on far more important and clear-cut matters. (Of course, for Davis this is an important and clear-cut matter.) Abortion is one such issue, on which Davis would most likely agree with me. But what about drone warfare? What about police brutality against racial minorities? What about the plight of undocumented immigrants? What about the years of torture practiced by agencies of the U.S. government? There have been cases where people were "squeaky wheels" on some of these issues (conservatives pointing out liberal "lawlessness" use "sanctuary cities" as one example, for instance). But I long for Christians to become more consistently prolife across the political spectrum, and more stubborn and audacious in how they live out these convictions.

As we wait for and work toward that day, however, we need to recognize those like Davis who are standing up for their convictions, whether or not they have chosen the right hill to die on. And we need to do this not only for Christians but for people of other religious traditions or none who make principled stands.

For instance, Charee Stanley was recently fired from her position as a flight attendant because, as a Muslim, she refused to serve alcohol. Certainly her case is different from that of Davis in a couple of ways. Obviously she is not a government employee, on the one hand, and on the other she took the job knowing that alcohol was involved (she converted to Islam recently, and concluded that her faith wouldn't let her serve alcohol even more recently). Her employer initially agreed to an accommodation, but rescinded the agreement because of the complaint of another flight attendant (a complaint pretty clearly motivated by anti-Islamic prejudice, given the reference to "foreign writings" and to Stanley's headgear). Conservative Christians who support Davis need to be rallying around Stanley as well.

Let us all, whatever our ideology, go the extra mile to accommodate the firmly held convictions of others, whether we agree with them or not. Healthy pluralism consists not in the imposition of an iron-clad rule of neutrality (which is impossible) but in a complex dance of courtesy and accommodation to the other. And even when, by our lights, the other does not return our courtesy (her staunchest fans would surely not claim that Davis is a tolerant or accommodating person), we should still go the extra mile anyway. And we should demand that institutions claiming to represent us do so.