Conservative Christians are rallying behind Kim Davis,
the Kentucky clerk who refused to issue same sex marriage licenses because
doing so goes against her religious convictions. Her refusal to comply with the law forced a
judge to find her in contempt of court after refusing to comply with a court
order. She was jailed and then
released. Conservative Christians in the
USA feel their religious liberty is being attacked. Perhaps it is in a way. The problem here is a fundamental one. What does a religious person do if the law of
the land goes against their religious beliefs?
Conservative Christians should bear in mind that like them, Muslims
believe God’s wishes supersede man’s wishes.
Kim Davis felt she must break the law because God comes first. What happens of a Muslim feels the same way?
Well that happened many years ago. Muhammad Ali, perhaps the greatest boxer of
all time defied the law of the land because he opposed the Vietnam war. Like Davis, Ali was jailed and served time
for his disobedience. When he emerged
from prison, he was still a great boxer, but he was not the same boxer he had
been. Today, Muhammad Ali is nearly
universally revered in the United States and for good reason. While not a perfect man by any stretch of the
imagination, he is a great man. Not only
did he become one of the greatest boxers ever, he did so at a time when black
athletes had everything against them. He
won Olympic gold in 1968, and was refused service in a diner in his own country
because of the color of his skin. Yet
despite his bitter disappointment, a disappointment which caused him to throw
his gold medal away, he persevered. He
could certainly talk the talk, but he also walked the walk.
But when he went to jail for refusing to serve in the
army, how did conservative Christians view Ali?
They ridiculed him. They said he
deserved his jail sentence. They said he
was un-American. They said they had no
time for black radicals and this Islam thing they were all on about was
dangerous. Coming off of calling Martin
Luther King Jr. a Communist and a threat to the United States, they condemned Muhammad
Ali and made light of his religious convictions.
But when Kim Davis, a Christian followed in Ali’s
footsteps, all be it for a different reason, Kim Davis became a hero and a
rallying point. It is easy to condemn an
adherent of the other religion, but when an adherent of your religion suffers
the same punishment, that suddenly becomes wrong.
I say all this not to condemn Davis and those who support
her. I say this to give them something
to think about. Because they feel under
attack, the issue of what to do when your religious beliefs conflict with the
law of the land is not really as clear cut as you might think. Muhammad Ali acted as a peace loving Muslim
when he went to jail, much the same way Cat Stevens did, and has done ever
since his conversion. For others,
however, religious conviction has been more radical.
John Brown was a Christian of deep convictions. He was so convicted that slavery was evil, he
turned to violence to free some slaves and killed some federal law enforcement
agents as a result of his efforts. He
was captured, tried, convicted, and executed for treason. John Brown was a radicalized Christian. He also happened to be right on one level,
and perhaps wrong on another level.
Today’s Christians, who forget or are ignorant of history, do not realize
that radicalization can occur in their religion as well as for Islam.
If the Supreme Court of the United States were infallible,
then things would be much easier for everyone.
“The Court has spoken” would give us all direction. But the Supreme Court is not infallible. The Supreme Court gave us the Dred Scott
decision, one of the most infamous legal decisions in history, and the most
infamous legal decision in US history.
It took a Constitutional amendment and a civil war to undo that
one. Thanks Supreme Court. Although Dred Scot – a ruling which enforced
slavery – was morally reprehensible, it was legally correct in my opinion. And I think this is where Americans need to
start looking if they want to deal with the dilemma of faith based
disobedience.
You see, same sex marriage has followed the course of
slavery except that we have not had a civil war just yet. Before the recent Supreme Court decision
mandating same sex marriage across all 50 states, the issue was decided on a
state by state basis. Same sex marriage
was legal in one state, and illegal in another.
Before the civil war, there were slave states and free states. Slavery was decided on a state by state
basis. This proved an unsustainable compromise
and it was this compromise that the Dred Scott decision upheld.
I said earlier I believe Dred Scott was legally
correct. Here is why, It all came about
because of the belief that “All men are created equal” and that since Scott, a
black man, was a person, he was equal to any other person. Slavery therefore constituted clear
discrimination. In addition, the Constitution
refers to “we the people.” How can one
class of person have the blessings of the republic while another class of
person does not? This is a very logical
argument. But the Supreme Court ruled
that when these documents were written, black people were not considered fully
human. They were considered partly
animal. And they were right. Thomas Jefferson who wrote that “all men are
created equal” did not think of the black man as a man. He was a slave owner and happy to continue
the practice. To him, this applied only
to white people. Dred Scott argued he
should be a citizen of the United States because he was born in the United
States, and because he was a person. The
court said that it was universally understood by the founding fathers that
black people were not people in the true sense of the word. Indeed, for apportioning electoral college votes,
black people were considered 3/5 human at the time. The Supreme court came to an absolutely wrong
conclusion morally, but a right conclusion legally. This is why Abraham Lincoln had to push for
the 14th Amendment and fight a civil war in support of it. (The 14th Amendment was added in
1868, three years after Lincoln’s death).
The issue of same sex marriage, is similar, but it lacks
a Constitutional Amendment. In the
recent Supreme Court decision affirming same sex marriage across the country,
the Court interpreted the Constitution.
It did not add to it. Indeed, the
Supreme Court does not have the power to add to the Constitution. Only the people can do this. So while the 14th Amendment solves
the issue of slavery legally, the Supreme Court decision is only a legal
interpretation. And of course,
interpretations are open to debate.
In California, the people voted to amend the California
Constitution to define marriage as an institution between one man and one
woman. This initiative was known as Proposition
8 and it was voted in by the people. I
voted in favor of Proposition 8 because I oppose same sex marriage, though not
on religious grounds. More on that
later. When Proposition 8 passed, the
gay community and gay rights activists were outraged. They filed a legal challenge to Proposition 8
and the California State Supreme Court agreed and threw Proposition 8 out. This was a disturbing decision to me because
in my view, the people have the right to define the Constitution. That right was taken away from us. As a side note, although I live in Australia,
for voting purposes I am a California resident which is why I was allowed to
vote.
The California Supreme Court said that Proposition 8 went
against the spirit of both the state and federal constitution. The problem with that decision is that
neither constitution says anything about marriage. It’s Dred Scott all over again but for
another reason. When the State
Constitution was made, and the federal one for that matter, it was universally
understood that marriage was between one man and one woman. It is why the Supreme Court consistently
upheld laws against polygamy.
If you look at various polygamy court cases such as
Reynolds V United States and Miles V United States, both of which involve Mormons,
The Supreme Court had no problem with the anti polygamy laws. In Miles V United States, the court ruled in
favor of the polygamist but only because the law of Utah at that time said that
a wife could not be forced to testify against her husband. Since Miles’ second wife testified before it
was shown that Miles had a first wife, the ruling against Miles was
vacated. The court ruled that congress
would need to close this loophole, something congress did. Today, spousal privilege still exists but
exceptions would remove the difficulty prosecutors used to have in polygamy
cases.
My point is that marriage was universally considered to
be between one man and one woman. No one
back then explored gay rights but more importantly, no one except Mormons
questioned the right to polygamy. Mormons
believed that it was their religious duty commanded by God to engage in
polygamy. So just as it was universally
understood that “all men” referred only to white people – a sad but true fact –
so it was universally understood that marriage consisted of a union between one
man and one woman, not one man and two women.
The various polygamy and bigamy laws enforced this notion.
Today in the United States, this is no longer the
case. Many people believe marriage is a
relationship between one consenting adult with another consenting adult
regardless of gender. The reason I am
disturbed by the Proposition 8 reversal is because a constitutional definition
is exactly what the country needs and the California State Supreme Court denied
the people their legal right to change the state constitution because such a
change would violate the Federal Constitution even though said Federal
Constitution says absolutely nothing about marriage.
But how far can the people go when it comes to changing
the Constitution? When should the
Supreme Court over-rule a voted for Constitutional change? Let us suppose, as a hypothetical, that
people amend to change the Constitution to ban Islam. I use this example because today, many would
be in favor of it. Such a law is clearly
illegal because it violates the First Amendment. So in order for a ban on Islam to become law,
the people would need to amend the Constitution vacating the First Amendment or
changing it to exclude Islam. Would the
Supreme Court have the right to overturn such a change? Yes it would because this change clearly
contradicts the existing Constitution.
There is no doubt such a change contradicts the Constitution.
This cannot be said for same sex marriage. Why?
Because the Constitution says nothing about marriage. Since marriage was universally understood to
refer to one man and one woman, no one worried about defining it. This same lack of definition was why, prior
to the 14th Amendment, states were allowed to enslave black people. Thus, an amendment to the Constitution to
define marriage would not actually contradict anything currently existing in
the Constitution. Any contradiction
would actually be a matter of interpretation.
If I say that denying gay people the right to marry
denies them of their constitutional rights, someone is well within the bounds
of good argument to ask what rights? If
I argue that such a denial disallows them from engaging in the “pursuit of
happiness” which the Declaration of Independence maintains is a right of every
human, a serial killer could argue that his pursuit of happiness is also denied
because he is not allowed to murder people.
Suppose I argue that I have the right to bear arms. I am absolutely correct. But I am legally blind. Does that mean I have the right to bear
arms? Absolutely it does. And this was upheld legally thanks to a
Constitutional challenge mounted by a blind Californian some years ago. The right to bear arms is a clear
constitutional right granted to every American within her borders. Courts have subsequently repeatedly upheld
the right of blind people to own guns In
this case, the Constitution does say something about bearing arms. I may not have the right to own my own Stinger
Missile, though I’m sure this can be debated, but I do have the right to bear
arms despite my blindness.
But as I said, the Constitution says nothing whatsoever
about marriage and polygamy is still forbidden in the United States showing
clearly that the law understands marriage to be between one man, and one woman.
So should Kim Davis have been jailed? Absolutely.
She violated the law of the land which, in the absence of a clear and
direct Constitutional mandate, the Supreme Court has the right to
adjudicate. But if conservative
Christians wish to uphold their liberty, they must be given that right and the
way to do this is by amending the US Constitution. The people of California were denied this
right and that was wrong. I think the
only way to resolve this issue once and for all is to ask the people how they
want to define marriage.
Since marriage is no longer considered to be exclusively
between one man and one woman, polygamy should be allowed legally in my
opinion. If we have two consenting women
who agree to marry the same man, why shouldn’t they? Polygamy laws make no sense if we are going
to redefine marriage. Polygamy laws
would send women back to the Dark Ages for reasons which should be pretty
obvious to everyone. I would oppose
polygamy. But legally, polygamy laws are
nonsensical now that gay marriage is allowed.
And the legal challenge is bound to arise if it hasn’t already.
For now, however, same sex marriage allowed across the
nation is the law of the land and those who choose to disobey must be willing
to suffer the consequences of their disobedience. If Davis feels she is unable to carry out her
duties as the clerk issuing marriage licenses, she should resign. But I think the issue is far to divisive to
allow an interpretation of what the
Constitution means to dictate such things, and especially not an interpretation
of just nine people who did not come to a unanimous conclusion. This sort of thing belongs to the
people. If we could come up with an
amendment to abolish slavery, we can come up with one to say yea or nay
regarding same sex marriage and we can also settle, once and for all, whether
polygamy should be allowed.
There is a situation in Australia where I currently live
that illustrates the consequences of same sex marriage. In Victoria the government is about to
mandate that same sex couples should be given equal consideration to
heterosexual couples when it comes to adoption.
Faith based organizations which help find homes for children are challenging
this legislation on the grounds that this would cause them to violate their
beliefs in this matter. Many faith based
organizations would, if given the freedom, refuse to adopt children out to same
sex couples on religious grounds. So
far, the Victorian government remains adamant that same sex couples must be
given equal opportunity.
I personally do not oppose two consenting adults having a
sexual relationship regardless of gender.
But I do have serious trepidation around whether children should be
forced to have same sex parents. This is
all about the rights of the child. Same
sex couples maintain they can give their adopted children a loving environment
and I believe they have every intention to do just that. They may even succeed. But do we have the right to say to a child “you
don’t get to have a mother” or “you don’t get to have a father?” I also believe, however, that given a choice
between no parents, and gay parents, gay parents are the much more preferable
option.
But if this legislation passes in Victoria, should faith
based organizations be forced to obey the laws of the land? I say no.
Why? Faith based organizations
volunteer their services. They may
receive government funding to help, but they undertake such service out of the
goodness of their heart. It’s a win-win
situation for both government and children, not to mention adopted
parents. Victoria might suspend funding
for noncompliance, but I do not believe they have the power to compel obedience
because the service is voluntary. What
this will do is close down faith based agencies which engage in this service
and make adoption for Victorian kids much more difficult than it already is,
and it is already difficult enough.
And do we know how children cope with same sex
parents? Are there any psychological
effects? I don’t think we know yet. I think it is too early to tell. So far the evidence I have seen seems to
indicate children do just fine with gay parents, but I am no expert and there
is an insufficient amount of evidence.
Gay people should divorce at about the same rate heterosexual couples
do. Evidence actually suggests divorce
rates are higher but again, it is probably too early to say for sure. Who gets custody of the children or more
accurately, who gets primary custody? So
far the law understands that some sort of primary custody is required, but what
happens with same sex couples? For
heterosexual couples, primary custody almost always goes to the mother. Fair or unfair, this is clearly what
happens. This also means the father is
expected to pay child support. How will
all this work with same sex couples? And
then, of course, there is the adoption issue.
We dictate to a child that it cannot have a father or a mother. Is this fair?
I personally think that if possible, a child should have
a mommy and a daddy. There are a lot of
unanswered questions and children’s rights to consider. The people have the
right to decide these issues and to take their time doing it. What we have now is a bunch of legislation
and dictates forced on people who may not want them. What kind of a democracy is that?
The people of California – one of the most if not the
most liberal state in the United States – voted against same sex marriage. And we were told we had no right to do
that. Democracy died in California that
day and it is dying all over America and here in Australia. Since the constitutions of both countries say
nothing about marriage, why should these sorts of questions be left up to the
interpretation of a few.
It probably stuns many to learn that in the 19th
century, we had to define what a person was.
Today it seems so obvious to everyone.
Back then, there was no knowledge of DNA, no understanding of genetics
among the masses, and a lot of misguided beliefs based on an inadequate understanding
of Darwin’s theories. These culminated in
the eugenics inspired mass murder of millions performed by the Nazis in Germany. That only stopped in 1945. What seems obvious to us today was not
obvious to our ancestors. And what was
obvious to our ancestors, such as the definition of marriage, is no longer
obvious to us. If we have to define the
terms we use then so be it. If we could
take the time to define what a person was (and Australia had the same issue
though without actual slavery), we can surely take the time to define what
marriage is. This should be decided by
the many.