Kim Davis, metaphysics, and the public square

I don't need to link to them. You can find them everywhere--in the blogosphere, among the pundits, on your Facebook feed. Some friends you are surprised at, too. Even people who said that Obergefell was a disastrously wrong decision, even people who oppose homosexual "marriage" (some of them). Now Kim Davis, Kentucky county clerk, has actually acted on the premise that Obergefell was a lawless, made-up, unconstitutional farce, that marriage literally cannot exist between two men or two women, and these people are shocked, shocked to find a person who stands on principle against a court order. Now she has allegedly placed herself against "the rule of law," as though Obergefell had anything whatsoever to do with the rule of law. As though the postmodern, lawless bloviatings of Justice Kennedy were not as far as possible from the rule of law. And then the smug talk: If she won't "do her job" she should resign. Should, mind you. Not just could resign. Not, "resigning would be an option." No, according to these people, she should resign. It's her duty. She must make way for others who will issue licenses to two men to carry out their ersatz unions and give them the name of marriage.

What is all of this? Is it not clear that Kim Davis is being consistent--legally, morally, and metaphysically? If Obergefell is a lawless farce, then Kentucky's marriage protection amendment is the law, and Kim Davis, unlike the Supreme Court, is actually upholding the rule of law. If homosexual unions are not only immoral but also metaphysically unable to be marriages--yes, even civil marriages--then to refuse to give them the name of marriage, as an official of the state of Kentucky, is simply to refuse to lie about reality. It is faithfully to carry out the duties of a clerk whose job it is to give out real marriage licenses.

At this point, it seems that no reductio will do, since homosexual "marriage" is already a reductio. But think: Would it make sense to say that she must resign if she were ordered to call a union between a man and a sheep a marriage and refused? Would it make sense to say that she must resign if she were ordered to call a union between a woman and a tree a marriage and refused?

What it comes to is that such simple-minded thunderings against Kim Davis are nominalist to their core, and in two ways. First, those who say such things are being nominalists about marriage, and by extension, about everything on which the positive law touches. Apparently, if the Supreme Court (whom they absurdly claim to be capable of making law) or some legislature were to declare that the value of pi is three, then everyone would be obliged, in all legal transactions, to treat the value of pi as three, whatever the consequences. If SCOTUS or a legislature (and SCOTUS wins if it disagrees with a legislature, just so you know the rules) were to declare an amoeba to be a person, entitled to all the legal protections of the 14th amendment, then all public officials would be in duty bound to treat it as such--to make out adoption papers for amoebae, to consider their best interests in legal proceedings, to consider an amoeba equal in value to a child, or to quit if they won't "do their job" and help those amoebae to their personhood rights.

And here's an interesting thought experiment: Suppose that SCOTUS were to declare that parents have a 14th amendment right to have their children up to one year old post-birth killed, that such children are not persons, does it then become the case that they are not persons? Must the police and other officials all cease to prosecute those who kill children under one year, or else resign in favor of those who will cease to prosecute? Must the police hold back any person who attempts to rescue an 11-month-old as his father prepares to throw him off a bridge? After all, SCOTUS has spoken on a matter of metaphysics, and it is now the LAW OF THE LAND that an 11-month-old is not a person. If not prepared to abide by the LAW OF THE LAND, the police must all quit their jobs. They must move aside and make way for those who will protect the killers of these new non-persons rather than protecting the (supposed) non-persons.

You see, society cannot afford radical nominalism in practice. Sure, there are some perfectly legitimate legal fictions. One can even say that in a sense adoption is a legal fiction. Those adopting are declared to be the child's parents when they have no biological connection to him. And there are some rules that are arbitrary matters of prudence and even aesthetics. How far back from the street must buildings be constructed in the downtown area? But we cannot run a society if everything, every matter of fact, every truth and falsehood, every matter of nature, is treated as if it is subject to the whims of positive law or court order. Nature will have her revenge. If you declare pi equal to three and act accordingly, you're going to have some funny-shaped train wheels.

Once we admit that you cannot create reality in all areas by judicial or legislative fiat, the question arises whether marriage, civil marriage, is one of the things that is just a matter of legal fiat. Is it just like the driving or voting age--last year it was one thing, this year it's another? Or is it more like the value of pi? Or like personhood? Well, it won't surprise my readers that I think civil marriage has an essence, a real nature, and that male-male and female-female relationships don't fall within that nature, any more than human-animal relationships fall within it. (And frankly, I don't give a plug nickel if someone says, "Gasp!" [Swoon, faint!] "Lydia McGrew made some kind of comparison between homosexuality and bestiality! How insensitive!" Yep. Very. Moving on...)

The point is that some things really do have natures, and marriage is one of them. To say that homosexual marriage ("marriage") is now THE LAW OF THE LAND is to assume without argument that civil marriage is so malleable that SCOTUS can just wave its magic wand, abracadabra, and now two men or two women really can be married to one another, and therefore Kim Davis needs to get with the program or move aside for someone else who will. If one disagrees with that metaphysical assessment, one will have a different assessment of Kim Davis. Kim Davis was being told by a judge to lie about the reality of marriage, which wasn't part of the job description she was elected to fulfill. Therefore, she isn't required either to lie about marriage or resign.

There is a second way in which the condemnation of Kim Davis, the smirking or pompous insistence that she must "do her job or resign," is nominalist, and that concerns the nature of jobs. Is there nothing like at least a quasi-essence of being a doctor, a policeman, or even a county clerk? Let's go back to the example of the 11-month-old declared by a court to be a non-person. What does it mean to be a policeman? All the more so if you signed up to be a policeman before this court order came down, the nature of the job as both you and society understood it involved protecting babies from being thrown off of bridges by their parents, not facilitating the baby-throwing. So if the police force decides to ignore the court's evil and insane redefinition of the child as a non-person and stop the baby-thrower, those police are not only doing the right thing but also, to coin a word, the policeman-y thing. Suppose that SCOTUS declares it to be a violation of 14th amendment rights to refuse to let registered sex offenders adopt. (I owe this example to David Bradshaw.) If an adoption officer nonetheless refuses to issue adoption papers to a registered sex offender, he's doing his job. It's utterly backwards to say that he's not doing his job. His job includes protecting children and seeking their best interests, not turning them over to sex offenders. If a doctor refuses to refer someone for an abortion or refuses to administer a lethal injection, he's being a real doctor. Will the people who condemn Kim Davis say the same about doctors in Australia who refuse to be complicit in abortion? Because now being complicit in abortion "is their job"? The medical association of Canada appears poised to require all doctors there to administer lethal injections for suicide or refer to those who will. Will that then become "part of their job"? Whence comes this idea that there is nothing that it means to fill a particular role in society? And how far could this be taken? If one fine year the Canadian Medical Association (or the American Medical Association) requires all doctors, as a condition of licensing, to have sex with their patients as therapy, will that also become part of the job? To torture some patients at the behest of others who are deemed to own them? To run about naked in the streets as a symbol of something or other? Can absolutely anything be made "part of the job"--part of any job, anywhere, any time?

One might think that the position of county clerk is not a good candidate for a job with an essence. But, given that it involves certifying civil marriages, which do have an essence, the possibility arises that the job of county clerk itself is more than just a sheer creature of positive law.

See, here's the thing: In order for society to function--at all, much less well--we need good people doing a good job at good jobs. If all or even most of the important jobs in society, the jobs that keep things running, are deeply corrupted, literally defined in such a way that to fill them you are required to be complicit in grave evil, and if it is literally a duty to quit all such jobs if you refuse to be complicit in grave evil, then society is going to collapse. Slowly or quickly, though the speed seems to be picking up. Do we really want all our doctors to be murderers, our teachers to be corrupters of the youth, and our minor public officials to be liars about the nature of reality? Keep on telling all the good people, all the people with a noble conception of their jobs, that they have a duty either to do evil or to quit and that's exactly what you'll get.

Since most of these jobs, when society was functioning better, were not defined in such a horrible way but were understood to be jobs one could take pride in, jobs that a good person could fill with a good conscience, it is therefore an honorable act, an attempt to hold back the collapse of human civilization, to continue to fulfill those roles in their honorable senses rather than either quit or be complicit in grave evil. It remains a prudential question whether that is the best course to take for any particular person in any particular situations. One can imagine situations where one might be able to spend one's energy better in some other way. But to say that one must always resign when one has conscientious objections to the newly declared "duties" of one's job is to say that we have to give up all of the important roles in society to people who are willing to do evil. I see no such principle anywhere--not in Scripture, not in tradition, not in reason. In fact, if there were enough people willing to refuse the corruption of their professions (see my above example about a unified police force), a lot of good could be done. In this case, if we had enough Kim Davises, enough staunch state governors, and enough deputies who refused to put any of them in prison, then we'd have a lot fewer lies told about sodomite simulacra of marriage and maybe even an outpouring of honorable self-government in America, all of which would be a good thing.

The idea of staying in a job and trying to carry it out according to the earlier, nobler conception of it on the basis of which you entered the profession has its difficulties. It is particularly difficult in the case of a position like that of federal judge. On an originalist understanding, the job of a federal judge is to "say what the law means" and apply it to concrete cases in accordance with that original meaning. I don't mean to introduce a huge philosophy of law debate, but it should be clear that, on that understanding of the job (which is not new), there might simply be an evil, unjust statutory law, duly passed by the relevant legislative body, which one would be called upon to apply to some concrete case. When that is the job and always has been--saying what the law means and applying it--there is far less room for remaining in the job while refusing to abet evil, if the people making some positive law one is called upon to interpret and apply become bound and determined to do evil. One might, however, be able to recuse oneself merely from particular cases, in that case, while staying on the job to prevent interpretive liars on the other side from striking down good laws. But there are a great many important jobs that aren't in any way limited to expounding other people's laws. Even a family law judge, for example, usually has as his mandate to do what is "in the best interests of the child," which obviously has much wider ramifications.

I've argued that the claim that Kim Davis has a duty either to issue homosexual "marriage" licenses or to resign is nominalist in two ways--as regards the nature of the institution of marriage and as regards the nature of her job. A resistance to this sort of nominalism is applicable in a variety of legal contexts. In Kim Davis's case, it is not (in my view) actually true to say that she is breaking the law (for the reasons mentioned above concerning the lawlessness of Obergefell and the most recent relevant law in Kentucky), though she is committing civil disobedience in the sense that she is defying a court order.

But the recognition that both things and jobs have essences may in other scenarios lead a person in a private or public job actually to ignore or disobey a positive law, passed by the legislature or other civil authority. A legislature could enact homosexual "marriage" or any of the absurd and wicked things mentioned above--adoption rights for sex offenders, a requirement for doctors to perform or refer for abortion, and so forth. In this latter case an interesting question arises concerning public civil servants: When are they carrying out their jobs within the legal system in which they originally took office, and when do they cross over into using their position in a more or less revolutionary or subversive way to undermine or counteract a corrupt system that has emerged subsequently? Imagine, for example, a railroad official who altered documents somehow in Nazi Germany so that trains would go somewhere other than Auschwitz and so that the prisoners might be rescued. I have no idea whether such a thing would even have been possible, but there is an obvious sense in which such a person is working against "the system" as it has come to be, secretly using his authority within the system. On the other hand, if we imagine the "rebellious" local police force pictured above that thumbs its collective nose at the courts and goes on stopping parents who wish to fling their children off of cliffs, that does not seem to me like even a remotely subversive act. Nor does it seem like a revolutionary behavior for a doctor quietly to go on taking out tonsils and treating pneumonia while saying, "No," when asked to perform or refer for abortion. Where precisely the difference lies (does it have anything to do with forging papers in one case but not in the others?) I'm not entirely prepared to say. My point here is merely that opposition to an attempt to twist one's job to the service of evil may take a variety of forms, and legal geeks may have fun (rather grim fun) sorting them out from one another.

Anyone who cares about truth and reality should care about Kim Davis's case. Anyone who cares about the fundamental nature of government and the polis has that much more reason to care about her case. And anyone who thinks that no one sane will be called to suffer in the culture war that is now upon us should look at her case and wake up before it is too late and he finds that he has moved, almost without realizing he was moving, to the wrong side.

I close with some well-chosen words from my Internet friend Jeff Culbreath, who wrote them on Facebook and gave me permission to use them:

James Madison, "A Memorial and Remonstrance. . . ." - James Madison

Excerpt:

Excerpt "Because we hold it for a fundamental and undeniable truth, “that Religion or the duty which we owe to our Creator and the Manner of discharging it, can be directed only by reason and conviction, not by force or violence.”
"The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right. It is unalienable; because the opinions of men, depending only on the evidence contemplated by their own minds, cannot follow the dictates of other men: It is unalienable also; because what is here a right towards men, is a duty towards the Creator. It is the duty of every man to render to the Creator such homage, and such only, as he believes to be acceptable to him. This duty is precedent both in order of time and degree of obligation, to the claims of Civil Society. Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governor of the Universe: And if a member of Civil Society, who enters into any subordinate Association, must always do it with a reservation of his duty to the general authority; much more must every man who becomes a member of any particular Civil Society, do it with a saving of his allegiance to the Universal Sovereign. We maintain therefore that in matters of Religion, no man’s right is abridged by the institution of Civil Society, and that Religion is wholly exempt from its cognizance." - James Madison

Is there anywhere a clearer statement of the underlying principle of the U. S. Constitution's provisions and protections for "the People's" rights and liberties?

The very foundation of the Founders' Declaration of Independence from a "government-over-people" rule to one of a people's recognition of "overruling Providence" and "people-over-government" liberty was summarized in Jefferson's, "The God who gave us life, gave us liberty at the same time: the hand of force may destroy, but cannot disjoin them."

In our generation, do we not see that "hand of force" unmasked at the same time as that same "hand" not only is reluctant to recognize Madison's "Creator," "the Governor of the Universe," and "Universal Sovereign," or Jefferson's "the God who gave us life," but utilizes that "hand of force" to deny public discourse to include those descriptions in its "politically-correct" discourse or teaching of the youth of America?

Kentucky law band gay marriage.

Nowhere does the Constitution give the Federal government any authority over marriage, which means that under the Tenth Amendment, that power is reserved “to the states respectively or to the people.”

To suggest that she should be unable to hold her office because she is following her religious convictions is not only a violation of her religious liberty, but is unconstitutionally imposing a religious test for holding office. The Constitution specifically bans that.

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