Kim Davis, the now-famous Clerk in Rowan County, Kentucky, who became known for her refusal to issue marriage licenses, was ar­rested and incarcerated in Septem­ber of 2015. She had refused to affix her signature to licenses being sought by two people of the same sex, even after the Supreme Court had legalized gay marriage, noting that this would force her to act against her conscience and her deeply-held religious convictions. Her resolve to stop issuing licenses under these circumstances needs to be grasped for what it really is, namely, a morally coherent course of action that respects the authentic nature of marriage and recognizes the duties of an informed con­science.

Jonathan Adler, a law profes­sor at Case Western University noted that Kim Davis “asked to be the person who issues marriage li­censes. And the state defines who is eligible to marry,” and sometimes “the eligibility changes.” 

In point of fact, however, he only begs the question under dis­pute. Opponents of the Supreme Court’s Obergefell decision stress that the state does not determine the nature of marriage; instead, it is nature that makes that determina­tion through the radical comple­mentarity of man and woman, a reality entirely outside the pur­view of the state to rede­fine or negate. The unique and exclusive eligibility of one man and one woman to marry each other can­not be changed by court order any more than gravity can be overturned by court decree.

Commenting on the Su­preme Court decision on gay marriage, Ed Peters, a canonist in Detroit, explains it this way: 

“Five justices imposed on marriage (true marriage, natural marriage, traditional marriage, whatever pleonas­tic phrase one wishes to use) the lie that marriage includes the union of two persons of the same sex.… The Court has published a naked, gross falsehood that tears simulta­neously at the fabric of law, language, family, and society. The word marriage has, and will always have, an objec­tively true meaning—no matter how many times it has been degraded.”

Ms. Davis resolutely de­clined to lend her signature, and the authority of her office, to af­firm this falsehood.

Even so, various commen­tators have tried to insist that Ms. Davis was elected to serve as a gov­ernment official, and should carry out the provisions of the law even if she might not agree with them. But this argument is flawed on at least four counts.

First, the claim that public ser­vants have a stringent duty to uphold the law tends to be selectively applied by those who make the claim. Nearly 18 months before Ms. Davis was jailed, and 15 months before the Su­preme Court decision on gay mar­riage, another public servant in Ken­tucky named Jack Conway, the state Attorney General, failed to carry out his duty of defending the Kentucky Constitution that affirmed marriage to be between one man and one woman. He publicly refused to de­fend the law of the Commonwealth before the Supreme Court; and Mr. Conway was praised and celebrated for his decision by numerous voices in the national media and in the legal establishment.  Mr. Conway’s refusal to perform this duty clearly contra­vened Kentucky law KRS 522.020; nevertheless, he was neither punished nor incarcerated for his failure to up­hold the fundamental marriage laws of the state.

Second, it would be wrong to suppose that workers and employees are mere cogs in the machinery of governments or corporations, mind­lessly following orders. Many Ger­man government officials and work­ers seemed to make this assumption during the last World War. Officials and employees are rather called to assist their employers in an attentive and collaborative way, so that the work of the institution or corporation they represent is marked by integrity and sound ethics. Ms. Davis sought to conscientiously protect the integ­rity of marriage and the work carried out in the Clerk’s Office by declining to issue licenses to two people of the same sex.

Third, when Ms. Davis was elected to the office of Clerk in Rowan County, gay marriage was still illegal, so she was elected to a posi­tion where, some time later, the ground beneath her feet abruptly shifted, and a new job description requiring her to violate her con­science was suddenly thrust upon her. Simply put, she hadn’t signed up for this. 

Fourth, legality does not auto­matically equate to morality. If work­ers or officials are asked to perform a gravely immoral activity, even one sanctioned by a legislature, a parlia­ment, or a Supreme Court, they must instead advert to a higher law, and individual conscience rights must be safeguarded to assure that they are not forced to comply with serious wrongdoing.

In sum, Kim Davis’ measured actions at the Clerk’s Office in Ken­tucky offer a coherent and coura­geous response to chaotic attempts to undermine marriage and the rule of law. Our society needs more of her coherence and courage, not less.

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