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Is Kim Davis a hypocrite?

September 7, 2015

Kim Davis—the Kentucky official jailed for refusing marriage licenses to same-sex couples on the grounds that issuing them would violate, among other things, her Christian beliefs about marriage—is a Protestant but I think her actions can be usefully assessed from a Catholic point of view. Her case also affords an opportunity to clarify some subtler points of Church teaching on divorce, so I’ll write at somewhat more length than is usual here.

Most criticisms leveled at Davis fall into three kinds: vile and vicious hate-speech; ad hominem attacks (Davis has been divorced several times, so pffft!); or red-herring arguments (a minor state bureaucrat cannot define marriage). We may ignore these criticisms. But one criticism of Davis’ refusal to cooperate with ‘same-sex marriage’ does have some traction: Davis apparently issues marriage licenses to persons whom she knows (or could find out) are civilly divorced, contrary, it seems, to biblical teaching against divorce and remarriage. Does she not thereby violate Christian doctrine and, if so, is she not being hypocritical by refusing marriage licenses to same-sex couples on religious grounds? Those seem like reasonable objections and I propose to defend Davis against them.

Aside: Analysis of religiously-minded state officials’ cooperation with civil divorce and remarriage is not new among Catholics, for Christ’s teaching on the permanence of marriage has always been upheld more rigorously among Catholics than it has among Protestants. If Catholics civilly divorce and remarry at nearly the same rate as do Protestants—and I think they do—at least such Catholics know they are acting contrary to the demands of Faith. Indeed, the ecclesial consequences of such behavior among Catholics is what all the hubbub was about at the last Synod of Bishops and what it is likely to be about at the next. In any event, it has been encouraging to see some important Protestant thinkers, as they confront ‘same-sex marriage’, begin to reconsider their acceptance of divorce and remarriage.

Before anything else, we need to be clear that divorce itself is not absolutely prohibited in the Christian tradition. Christ’s own words here are firm but nuanced (see Matthew 5 and 19, Mark 10). The Catechism of the Catholic Church n. 2383 states “If civil divorce remains the only possible way of ensuring certain legal rights … it can be tolerated and does not constitute a moral offense.” And Canons 1151-1155 and 1692-1696 of the 1983 Code, although seldom invoked these days, provide a mechanism for regulating (not prohibiting) the faithful’s approach to civil courts for divorce decrees.

No, it is not divorce per se (pastoral tragedy that it usually is) that attracts the Church’s special attention in this context, but rather, divorce-and-remarriage; so we ask, is Davis’ cooperation with remarriage after civil divorce hypocritical given her refusal to cooperate with ‘same-sex marriage’? I think not.

Consider: there are two kinds of civilly divorced people—divorcees whom the Christian tradition regards as ineligible for remarriage, of course, and—this is crucial—divorcees whom the Christian tradition regards as eligible for remarriage. That is a vitally important distinction to bear in mind.

The patently biblical Pauline Privilege (I Cor. 7: 10, 1983 CIC 1143) makes possible in the eyes of the Church (or in the eyes of God, if we need to say it) the remarriage of someone who is unquestionably already married. But without a civil divorce decree that biblical right to remarriage would be, as a practical matter, useless. The State, quite reasonably, demands a divorce decree before issuing a marriage license to anyone who was, at one point, married (if the former spouse is still alive, etc.). Assuming such a decree, a divorced Christian, properly invoking the Pauline Privilege, may enter a new marriage in full accord with biblical and Church teaching. Such a marriage, we would insist, should be recognized as a marriage by the State. Similarly—at least as far as Catholics are concerned—Petrine Privilege cases and ratum non consummatum dissolutions, both of which enable previously married persons to enter a new marriage with the Church’s blessing, would be devoid of practical effect without a decree of civil divorce. Finally, ecclesiastical annulments (at least those decided on grounds not also recognized by the State—such as undispensed holy Orders or disparity of cult) would be virtually useless toward a desired new marriage if those relying on these Church rulings had no civil divorce decrees.

In short, Christianity acknowledges that at least some persons with civil divorce decrees have the right, in accord with biblical teaching and Catholic doctrine, to enter new marriages even while their former spouses are still alive. Thus in issuing marriage licenses at least to these classes of divorced persons—and setting aside for now how a county clerk could know such religious details about strangers—Davis is not acting contrary to Christian doctrine and any consequent allegation of hypocrisy fails on its face.

On the other hand, some (even many) persons with civil divorce decrees are not the beneficiaries of a biblical or ecclesiastical exception to the rule against divorce-and-remarriage nor have they been proven to have entered a canonically null marriage. May a conscientious Christian civil official still issue marriage licenses to divorced persons in light of the odds that many such persons are likely to be violating Christian teaching against divorce-and-remarriage, and yet not be acting hypocritically by refusing to issue marriage licenses to same-sex couples on religious grounds? I think that a religiously-aware State clerk may issue marriage licenses to civilly divorced persons without acting hypocritically by refusing same-sex couples their requests for marriage licenses. Here’s why.

Civil divorce is now deeply, deeply entrenched in Western law. Like weeds among the wheat (Matthew 13), routine divorce cannot, I think, be pulled from the American marriage scene without an upheaval whose costs would likely exceed the benefits. Adding that divorce per se is not always contrary to Christian doctrine, and that some civil divorces actually enable subsequent marriages that Christians themselves should honor, I think issuing civil licenses to divorced persons—persons who might, upon careful examination, be found eligible for a subsequent marriage even by Christian standards, and in any case when refusal must come about, if at all, only after a widespread, legislatively authorized social reform—is defensible in the practical order. Reform of civil divorce law is, I think, necessary, but the routine practice of divorce itself, and sinful remarriage after divorce, is primarily a spiritual wrong to be addressed primarily by spiritual remedies.

The situation is, however, very much different with regard to ‘same-sex marriage’. Not one shred of doctrinal or juridical support for ‘same-sex marriage’ can be found in the multi-millennial Christian tradition or in the classics of natural law jurisprudence. Indeed, asserting marriage as being possible between two persons of the same sex is contrary to infallible Church teaching and is probably, strictly speaking, a heresy rendering Catholics liable to excommunication. Marriage pre-existed the Church and it even pre-existed the State. As the primordial human relational institution it is beyond the power of any human authority to alter the fundamental definition of marriage as the union of one man and one woman. A State-imposed imposition of ‘same-sex marriage’ on a society is not simply an abuse of marriage (as, say, anti-miscegenation or pro-polygamy laws abused marriage), but is instead the imposition of a fundamental falsehood on society, a falsehood that damages the rule of law, the use of language, and the stability of the family.

So where does all of this leave a State official like Kim Davis?

In the exercise of his or her civil duties, a State official begins with the assumption that (subject to a longer list of caveats than most people seem to realize) human beings have a fundamental right to marry. An official therefore needs a reason—a good reason, considering that marriage is a fundamental human right—to refuse specific persons a marriage license. To this, I trust most would agree. Now, compare two scenarios.

Scenario A: Two persons of the opposite sex walk into a civil registrant’s office seeking a marriage license. Assume that one or both are divorced. Does a State official, striving to live in accord with Christian values, have a reason—a good reason—for refusing that pair a marriage license? I think not.

When divorced persons walk into a civil servant’s office seeking a marriage license—assuming the civil official even knows of the divorce(s)—there is no way that the State official would know whether said persons were beneficiaries of re-marriage privileges granted in the Bible or by Christian tradition, or whether they had been in marriages that the Church would have regarded as null from the outset. Civil inquiry into such matters, moreover, besides being burdensome in the practical order, would inevitably involve State officials in inquires of a purely religious nature—something common sense discourages and Constitutional law generally prohibits. Thus, an official would not have access to sufficient evidence to overcome the general presumption that persons have the right to marry, and so, their right to marry must prevail. Davis apparently does, and should, issue marriage licenses to divorced persons even if she suspects that, along with some divorced persons who will remarry in accord with sound Christian doctrine, some divorced persons will remarry in violation of Christian doctrine. But like the guilty who escape this world’s justice by the technicalities of laws designed to protect the innocent, God knows who those malefactors are and He will deal with them in His own time; meanwhile the social disorder that is certainly introduced by serial marriage cannot be repaired—and might even be worsened—by an executive officer’s solitary stab at reform. A civil clerk’s issuing of marriage licenses to civilly divorced persons is defensible in light of biblical teaching, ecclesiastical tradition, and natural law jurisprudence.

Scenario B: Two persons of the same sex walk into a civil registrant’s office seeking a marriage license. Does a State official, striving to live in accord with Christian values, have a reason—a good reason—for refusing that pair a marriage license? I think so.

An official need not know anything about the two people before him or her, beyond that they are of the same sex, to know that they cannot marry no matter what the Supreme Court, or the Obama administration, or nearly all of the mass media say and therefore refuses their request for, of all things, a marriage license. Davis’ refusal to issue marriage licenses to same-sex couples is defensible in light of biblical teaching, ecclesiastical tradition, and natural law jurisprudence.

In sum, I believe that Davis is, from a Christian and from a natural law perspective, acting defensibly both in issuing marriage licenses to divorced persons and in withholding them from same-sex couples. As such she should not be accused of acting hypocritically.

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