Archive for the ‘ Dissecting Spin ’ Category

Conscience, Human Rights, and a Kentucky Clerk

KimDavisSo inevitably, a blog that’s all about religious freedom would need to comment on the ongoing troubles of Kentucky clerk Kim Davis, and her stand against issuing marriage licenses to same-sex couples.  I didn’t want to rush on that right away, because I wanted to do so thoughtfully, and dig underneath the impulsiveness and spin of both right- and left-wing media… and also add some context from the experience of a Canadian, living in a nation where marriage equality happened back in 2006 without a “Christian genocide” (I’ll discuss that sort of phrasing in a later post) occurring.

Because the “conflict between LGBT human rights and religious freedom” is actually remarkably un-complicated, when you drill down to the bottom of it.

First, the particulars.  Kim Davis is the elected (2014 — as a Democrat, ironically) clerk in Rowan County, Kentucky.  After the Obergefell v. Hodges U.S. Supreme Court ruling, she chose to defy a U.S. Federal Court order which required her to issue marriage licenses to same-sex couples.  Saying she was acting “under God’s authority,” she was jailed for contempt of court, on September 3rd and may face charges of official misconduct.

Here are some of the points that her legal team, Liberty Counsel, has made on her behalf:

“Davis only asked that the Kentucky marriage license forms be changed so her name would not appear on them. She would record any license without her name affixed. Marriage licenses remain in county records permanently. Davis said, “I never imagined a day like this would come, where I would be asked to violate a central teaching of Scripture and of Jesus Himself regarding marriage. To issue a marriage license which conflicts with God’s definition of marriage, with my name affixed to the certificate, would violate my conscience.”

“Before the U.S. Supreme Court issued its opinion in Obergefell on June 26, 2015, 57 clerks, including Davis, wrote a letter to Kentucky legislators during the regular session, pleading with them to “get a bill on the floor to help protect clerks” who had a religious objection to authorizing the licenses. The Kentucky Clerks Association also recommend that the names of clerks be removed from the forms.

“… Kim Davis does not hate homosexuals or lesbians, as she explained: “I have no animosity toward anyone and harbor no ill will. To me this has never been a gay or lesbian issue. It is about marriage and God’s Word. It is a matter of religious liberty….”

“… The Supreme Court did not change Kentucky’s marriage law or its forms, but invalidated the legislation limiting marriage to opposite sex couples…”

There are a few other points at that link establishing her God credentials, and discussing her divorces, which in my opinion have been (perhaps fairly, but overblown) touted in media as showing her own hypocrisy.  Those points are irrelevant to the specific discussion here.

Liberty Counsel’s statements are a bit dubious.

Davis not only refused to sign and provide the licenses: a major part of the contempt ruling was because her deputies were not allowed to issue the licenses, either.  (Following Davis’ jailing, 5 of 6 subsequently have started issuing licenses, but without Davis’ signature)

Additionally (this is hinted at in one of the above points, but not made clear), the licenses may not be valid without her signature.  Davis has in fact argued that they are not.  Admittedly, this isn’t clear — a judge questioned about the discrepancy only remarked that couples getting licenses in Rowan County do so at their own risk — but it’s certainly likely that Liberty Counsel or another right-wing group would attempt to contest the legality of those licenses, at some point.  Either way, Davis is in essence demanding the right to deny all licenses from her county office, altogether, which goes beyond the jurisdiction of personal conscience.

There are nuances, and this is no exception.  I’ve touched on the first two, and there are also others:

  • As mentioned above, she used her power to disallow her deputies to issue the licenses;
  • Also mentioned above, it’s not simply a question of a refusal of a signature, but also an attempted refusal of legal standing of the licenses;
  • Davis is a public employee, and responsible to all citizens of the State of Kentucky;
  • As a public employee, she is subject to the legal principle of the separation of church and state;

But a crucial point, independent of all of the above, is probably that in any dispute centering on a conflict in rights, there should be at least some effort to accommodate.  All of the above assumes that LGBT human rights cannot be accommodated at all, without automatically invalidating the rights of Christians to live their faith.

But it’s not an either/or proposition.  There is a key flaw in the way this is framed.

In Canada, the conscience debate has had some instructive resolution in the medical field (although there are occasionally attempts to resurrect it).  Many provincial Colleges of Physicians and Surgeons across the country have some form of policy that allows medical professionals to decline to participate in processes that violate their conscience, provided that a timely referral is made and the patient is able to access the medical care they need, in a timely manner.  “Timely” is somewhat relative, and the rules don’t always work well (honestly, sometimes the process fails and care is denied or unreasonable obstacles are created), but it is at least a formal acknowledgement that there is a duty to accommodate, in a way that is relatively equitable for both parties.

What is instructive is that in Kim Davis’ very public demand for her right to freedom of religious conscience, this is not even a question.  The closest it ever came to being addressed at all was when some supporters claimed it’s a reasonable accommodation to require county residents to drive to a neighbouring county to obtain their licenses.  It’s not hard to recognize that that’s actually an undue hardship.

As someone who has advocated for trans* people and know how the Colleges’ policies fail in Canada, I don’t consider theirs an ideal solution.  However, the point is that there could be some form of middle ground, even if imperfect.  The State of Kentucky could amend their laws to ensure the validity of marriage licenses without Davis’ signature (to Davis’ credit, she does appear to have asked, and was ignored by legislators), and require that at least one person in the office be present besides herself who would be willing to issue them.  But among the far right, this isn’t even a discussion.  Among the far right, the objective is simply to have the right to deny licenses altogether, with no compromise being considered.

And that speaks volumes about Davis’ and supporters’ demands for religious freedom.

In closing, here’s a hint about what Davis’ supporters (and arguably perhaps puppetmasters) really feel about things:

“[Wallbuilders’ David] Barton, predictably, responded by asserting that Davis is entirely in the right to refuse to allow her office to issue marriage licenses to gay couples because “the Founding Fathers made it real clear that the laws of God are higher than the laws of man.”

“This is a law of God. Man’s law is not allowed to contradict God’s law,” Barton said, which means there can be no justification for jailing Davis because she is upholding God’s law…”

(From my sister blog, Today In Religious Freedom)

Legislatively “Balancing” Human Rights

There is a simple, time-honoured rule about attempting to “balance” human rights classes in legislation so that it works out a particular way every time, and it goes like this:

You can’t.

That is a court’s role.  When two human rights classes are put into conflict in a way that creates hardships for both, a court becomes the arbiter, weighing the context of a given situation in order to determine which party has experienced the most undue hardship.

Legislating such a way that one party’s rights always supersedes the other creates a hierarchy of rights, and defeats the whole purpose of equal rights legislation.

Bill 10

That is what took place this week with Alberta’s Bill 10, which newly-crowned Premier Jim Prentice introduced to dump and replace Liberal MLA Laurie Blakeman’s Bill 202.

The latter bill sought to do three things:

  • Give students the right to form Gay-Straight Alliances (GSAs) when and if they wanted to;
  • Remove a section (s.11.1) of the Alberta Human Rights Act which called for parents to be notified and either evacuate their children or opt them into anything that taught tolerance of LGBT people (interesting trivia: Alberta is the only jurisdiction in the world that has a “parental rights” clause like this, and it took several years to implement because no one was sure how it could work); and
  • Add a mention of the Charter of Rights and Freedoms and the Alberta Human Rights Act to the Education Act.

Premier Prentice’s new Bill 10 does this:

  • Encourages school boards to allow GSAs;
  • Allow the students to sue the school boards if they don’t (presuming they can find enough legal help, information, support and funding to cover the legal expenses to do so, and ride out the years of delay tactics at boards’ disposal);
  • The bill also removes s.11.1 from the Alberta Human Rights Act, but makes changes to legislation which more or less negates the change, other than affecting the way complaints are addressed.

If at any point the Premier thought he had sliced through a Gordian Knot worthy of Alexander, he soon realized otherwise.  As the bill came up for Third Reading, several amendments were proposed by opposition MLAs, and Prentice is now said to also be considering some of his own.

There are two central conflicts within this debate, one that is discussed frequently during many debates on social issues, and another which has been barely remarked upon at all.

“LGBT Rights vs. Religious Freedom”

The first is the false equivalence between LGBT human rights and religious freedom.  The reason I call it a false equivalence is because what we’re really talking about is the complaint that the (“special,” as it’s sometimes called) right of lesbian, gay, bisexual and trans* people to have equal access to employment, housing, services and other forms of enfranchisement is trumping the (“perfectly ordinary everyday?”) right to deny LGBT people any or all of those things.  People retain the freedom to believe what they will, practice their faith, and speak their beliefs — all up to the point where doing so becomes harassing and disenfranchising to others.  In most of the situations that are framed as pitting LGBT rights against religious freedom, this sort of conflict can only be considered equally-matched if you believe that coexistence is a violation religious conscience.

But the “gay rights versus religious freedom” argument has been losing steam, partly because the public at large is starting to recognize it as a ruse, and partly because the cause of religious freedom opens the possibility that the proponents’ religion will be placed on an equal footing with other religions, such as Islam, Satanism, or even Atheism.  Hardline social conservatives like the American Family Association’s Bryan Fischer have spoken out about this within religious circles, and more are starting to follow.

Consider this candid rant by Scott Lively, the pastor who is widely credited with having inspired Uganda’s Anti-Homosexuality Act and Russia’s ban on “gay propaganda”:

“For about a year now I’ve been arguing against the use of “religious liberty” as a theme of Christian public advocacy. We retreated to that theme after SCOTUS Justice Hugo Black’s abandonment of the Bible’s authority in favor of a new “religious pluralism” standard in the 1940s-60s, starting with Everson v Board of Education (1947). That was the case that adopted Jefferson’s “separation of church and state” metaphor as a justification for declaring all religions to be equal with Christianity in America, and equally subservient to Secular Humanist authority…

“But God always provides a way of escape. (We’re only trapped if we accept the limitation of staying on their chessboard.) That narrow and difficult but God-honoring way is to stop arguing for “religious liberty” and resume our proclamation of the superiority of Christ and His Word over all opposing faiths (along with tolerance for people of other faiths — that‘s how it worked before Black). It’s goal must be nothing less than an official reaffirmation of the Bible as our legal and cultural foundation, which would require overturning Everson and its juridical progeny…”

It was never really about religious freedom.

“Parental Rights”

The other conflict that has been almost completely missed is the one between youth and parents.  The argument made for parental rights clauses is that parents should have (using the language of Bill 10) the right “to make informed decisions respecting the education of their children.”

No one was ever stopping parents from teaching their children what they believe and encouraging their kids to follow their lead.  What parental rights are actually about is the right to deny their children any information to the contrary.

And that only sounds like a good idea until you remember that the kids should have rights too.  But by enshrining parental rights in legislation, the Province of Alberta is essentially prioritizing the right of parents to deny their kids knowledge (and emotional support, if their kid happens to be gay or trans*) over the right of children and youth to know.  In some cases, it means that the attitudes of the narrowest-minded parents determine what everyone’s kids are allowed to know.

And when you say it for what it is, it doesn’t really sound like that brilliant a compromise.

The Not All Like That Christians Project

Christians are “Not All Like That” (i.e. anti-LGBT).  I get it, and try to phrase my writing accordingly.  Society, on the other hand, *doesn’t* get it, and the extremists have been successful in painting their position as the “Christian” position.

If it is not your position, here’s a way you can add your voice to those wanting to make this clear.


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