Friday, September 04, 2015

What if Kim Davis was Muslim?

This has become an overnight trope for opponents of Kim Davis:
What I want is even one reputable journalist (if any remain) to ask that question to any of the vocal supporters of Ms. Davis' civil disobedience.  In case you didn't get it, I'll repeat the question.  How would you feel about this Rowan County Clerk if she were instead a dark-skinned Muslim who refused to do her job because she thought it violated the teachings of the Koran?
That's a pretty stupid question, really; because we all know the answer.  If a Muslim Kim Davis were allowed to hold up the civil workings of her county based on the Koran; you all, along with the whole Fox News megaphone would be apoplectic about Sharia Law!!!!!! on a 24/7 basis.
Really, answer that then tell me why you're not a gigantic hypocrite who actually hates religious freedom. 
So what about her religious conscience? If you think Davis’ religious conscience is sufficient grounds for a same sex couple to be denied a marriage license then be prepared to defend the religious conscience of a Muslim clerk who denies a heterosexual couple a marriage license because the woman is a Muslim and the man is a non-Muslim. Islamic law forbids Muslim women from marrying non-Muslim men unless they convert. Somehow I can’t see Mike Huckabee going out on a limb for a Muslim marriage clerk who demands an Evangelical Christian male convert to Islam in order to marry a Muslim woman. 
I would say I can't wait for a Muslim county clerk in, say, Dearborn, Michigan (which has a huge Muslim community), to refuse to issue a marriage license to a Christian couple on the grounds that the this kafir couple hasn't been paying jizya... but that's not going to happen. 
Finally, the defenders of “religious liberty” are never entirely honest about what they mean. They only really care about the liberty of Christians, not religious people as such. What would they say if a Muslim county clerk refused to marry a Muslim to a non-Muslim? What would they say if that clerk consented to polygamous marriages in accordance with Sharia law? My guess is they’d sound the alarm bells and hysterically protest the theocratic encroachment.
Slippery slope arguments are almost always sloppy, but not in this case. Once you permit religious objections of this kind, where do you draw the line? What constitutes a genuine religious belief? Who can make such a determination? And how do you apply religious exemptions in a secular and pluralistic context? There are no definitive (or acceptable) answers to these questions, which is why church and state are separate in this country.
As you can see, they imagine this is a real humdinger of a counterexample to Christian supporters of Davis. This will leave us speechless. 
Several issues:
i) To defend Kim Davis's action doesn't mean I have to defend her argument. It's not incumbent on me to frame the issue in the same way she does. People can be right even if they don't know how best to argue for their position. 
ii) The problem with the analogy is that it's crucially disanalogous. Due to his commitment to Sharia law, the Muslim clerk doesn't respect the Bill of Rights. He doesn't acknowledge Constitutional freedom of religion, freedom of speech, or freedom of association. His religion is antithetical to the civil liberties enshrined in the Bill of Rights. 
Therefore, that disqualifies him from being an American gov't official in the first place. He cannot, in good conscience, swear an oath of allegiance to uphold the US Constitution. 
By contrast, the Bill of Rights implicitly protects Christian freedom of expression. That's one of the primary religions that James Madison had in mind when he drafted the Bill of Rights. Unlike Islam, there's no conflict between Christianity and the Bill of Rights. So the comparison is vitiated by equivocation. 
Davis isn't acting in defiance of the Constitution. To the contrary, the Constitution protects the right of Christians to exercise their faith.
iii) Now some critics would say that's fine in reference to the activities of a private citizen, but a public official must do their job and carry out the law.
Well, in 2004, Kentucky voters outlawed homosexual marriage by amending their state constitution. Therefore, Davis was doing her job. Far from breaking the law, she was following the law. She was doing precisely what the voters of Kentucky authorized her to do in that situation. Opponents of Davis are bent on forcing her to break the law. 
In addition, there's no Federal statue that mandates homosexual marriage. No Federal statute that supersedes state law in this situation. By contrast, we do have the RFRA. That's a Federal statue protecting religious freedom. 
iv) The real contention is that she defied a Supreme Court ruling. But that raises two issues:
a) The Bill of Rights explicitly protects religious freedom. By contrast, the Constitution contains no explicit or implicit right of homosexual marriage. 
It's the duty of the Supreme Court to uphold the Constitution. What happens when, instead of respecting our Constitutional liberties, Justices violate our Constitutional liberties by conjuring up an imaginary right out of thin air, which conflicts with our express Constitutional liberties? They just pretend that there's a Constitutional right of homosexual marriage, when there's nothing in the text, logic, history, or original intent of the Constitution to justify that imputation. 
b) When the same Court rules against the Obama administration in the Hobby Lobby case, the Obama administration simply circumvented the ruling:
No rule of law is anarchy; selective rule of law is tyranny. Liberal officials exempt their own constituency from the rule of law, but use that as a weapon to blugeon their political opponents. 
v) As to drawing lines:
a) We can begin by asking what kinds of religions James Madison had in mind when he drafted the Bill of Rights. In the 13 Colonies, what religions were in play? Likewise, when the 13 colonies ratified the Constitution, including the Bill of Rights, what kinds of religious were in view? You can analogize from that to the contemporary situation.
So, for instance, the free exercise clause was never meant to cover a homicidal doomsday cult like Aum Shinrikyo. Rather, it was meant to cover religions like Judaism and 18C Christian sects. 
b) In addition, we have a legislative branch. It isn't necessary to read the tea leaves of the Constitution. The Constitution is silent on many specifics. It's up to Congress or state legislatures to fill in the details. For instance, Congress or a state legislature has the authority to outlaw Aum Shinrikyo. It's not the kind of religion that James Madison or the states which ratified the Bill of Rights had in mind. By the same token, Congress or state legislatures have the authority to outlaw jihad. 


  1. What if Supreme Court justices like Kennedy were Constitutional?

    What if Obama was law-abiding?

    What if the Dems stopped trying to undermine the law?

    What if LGBT advocates played by the rules rather than make up their own rules to suit them?

    The possibilities are endless! :-)

    1. what ironic comments Patrick! i bet you believe Obama is born in Kenya too right?

  2. If Davis were a Muslim they would have given her a big raise and quietly moved her.

  3. Steve, Thanks for the post. What if Kim Davis were a Muslim and denied a marriage license to a same-sex couple because of conscience? Would the media and state treat the issue the exact same way?

  4. acutally James Madison and friends believed it to apply to ALL religons steve, including "hindooism" "mohammedanism" and "paganism", and Kim Davis also is not respecting the Bill of rights according to your logic, you are just another white rich fundie who is mad that his previliage is getting taken away and cant tell that from persecution

    1. wakawakwaka aka Tony Jiang: Simon Fraser University student by day, troll extraordinaire by night.

    2. If you read the text of the Virginia Statute on Religious Freedom, sponsored by Madison, it clearly precludes a theocratic state based on Sharia. Unlike Islam, it repudiates official compulsion in religion. For instance:

      "We the General Assembly of Virginia do enact that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer, on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities."

      This obviously underlies the First Amendment Establishment and Free Exercise clauses.

    3. Kim Davis said that she refused to issue certifcates to gays because of "god's authority" , clearly showing that she just like the muslim believes in a theocratic state

    4. Davis is not the issue. Her personal motivation is irrelevant. The good citizens of Kentucky amended their state constitution to forbid civil homosexual marriage.