The Illiberal Obstinacy of Kim Davis

In the New York Times this month, the gay marriage opponent Ryan T. Anderson published a defense of Kim Davis, the Rowan County, Ky. clerk whose refusal to issue marriage licenses to gay couples won her national notoriety and a four-day visit to jail. “Religious freedom and religious accommodations,” Mr. Anderson says, “are all about creating space for citizens to fulfill their duties, as they understand them, to God.” Ms. Davis’s jailing, he contends, is evidence of the government’s failure to make appropriate concessions to her faith. Mr. Anderson’s suggestion is that Kentucky follow North Carolina in making statutory accommodations to public officials who wish on religious grounds to exempt themselves from discharging their duties; until then, the religious person will suffer under the Supreme Court’s heavy hand.

What Mr. Anderson suggests is subversive of the very liberal principles, with their protections for faith and conscience, that he and the Republicans in the North Carolina state legislature purport to defend. Mr. Anderson is correct to say that we ought to find a way to coexist peacefully in the face of doctrinal difference — a great challenge to any liberal society — but he is wrong to think that this peace is best delivered by government accommodations to religious public officials.

The best liberal society is not the one in which recalcitrants like Ms. Davis are given allowance to fulfill their responsibilities only to the extent permitted by their religious or moral convictions, but the one in which all political actors — voting citizens, elected representatives, judges, bureaucratic officers — exercise their rights or discharge their duties according to ideas or principles that are acceptable or justifiable to all Americans: those encoded in the Constitution, for example, or those established by American jurisprudence. Because they are common to all members of the American polity, these ideas and principles satisfy the requirements of public reason, the central feature of the most compelling model of the ideal liberal society to date, that given by the philosopher John Rawls.

A liberal society of the sort Rawls concerns himself with is, very simply, one that respects the individual liberties of its citizens. Theorists in the liberal tradition have spent some four hundred years turning over questions of the nature of these individual liberties, their relation to private property, and the extent to which they are subject to abridgment by the government. John Locke, whose rejection of monarchy and defense of natural rights inspired Thomas Jefferson in writing the Declaration of Independence, is usually thought to be the father of liberalism. Two hundred years after Locke, another Englishman, John Stuart Mill, offered his own enormously influential account of a liberal society, by which a zone of non-interference is established around the individual not on the basis of natural right, but for the utilitarian benefit it affords.

What comes of liberal society, though, if some of its members don’t subscribe to the doctrine of natural right? If some reject Millian utilitarianism? Problems of stability and legitimacy vex any liberal theory: with freedom comes diversity of doctrine, and with diversity of doctrine comes, inevitably, the disavowal by many of the very principles that justify liberalism in the first place.

What Rawls offered as a solution is a political liberalism, so called because its organizing values are not religious or moral, but those arrived at by reasonable citizens, those who understand society to be a fair system of cooperation among free and equal peers and who are committed to finding mutually agreeable terms of coexistence. In a politically liberal society, citizens are afforded basic rights — to freedom of conscience and of speech, for example — not because, as Locke thought, God wills it or, as Mill argued, because a utilitarian calculus demands it, but because they are thought essential by citizens who recognize themselves and each other as equal and free persons. These persons are called free and equal because they are thought to be capable of generating and revising a conception of the good, entitled to make claims on their government, and responsible for adjusting their intended ends to their available means.

This conception of the free person is strictly political and is the foundation of the ideal liberal society. The relationship of one citizen to another in this society embodies Rawls’s liberal principle of legitimacy: that coercion or political action is only legitimate so long as it can be reasonably believed to be acceptable to all free and equal citizens. Adherence to the ideal of public reason ensures that this principle of legitimacy is realized. The reasonable atheist judge hews to public reason when she realizes it is improper to issue verdicts on the basis of her particular moral commitments, and the Christian when he refrains from voting from religious conviction. The values they reason from are political values common to all reasonable citizens, and so the decisions made are legitimate and conducive to social stability.

We see that how this might work in the recent Supreme Court case Obergefell v. Hodges, in which the arguments were given in political terms, of equal protection and individual autonomy, not in religious or moral terms. The reasons given, in other words, were public reasons, intelligible to all*, irrespective of religion or moral commitments. All reasonable Americans speak and understand the language of the Fourteenth Amendment.

If we take seriously the threats to liberalism of instability and illegitimacy, we ought to see that Kim Davis is as bound to public reason as a Supreme Court justice. Her office is a political one and so the decisions she makes in the capacity of a county clerk, if they are to be legitimate, must be derived from principles acceptable to all Americans. Otherwise she is guilty of a sort of tyranny, in spirit if not in practice: she imposes her private religious convictions on those to whom by the lights of the law she ought to issue licences, acts qua Kim Davis the Christian to those to whom she ought to act qua Kim Davis the county clerk.

Ms. Davis is compelled to issue licenses not only legally, but morally: legally because the law sanctions gay marriage, and morally because her acting politically from her religious convictions evinces an indifference to the freedom and equality of her peers, to whom she owes justification in the terms given by public reason. Mr. Anderson claims a more perfect liberal order is one under which Ms. Davis’s demur is protected; I say with Rawls that a liberal order under which political actors are entitled to act according to their private religious and moral convictions is hardly a liberal order at all. North Carolina, Kentucky, and the rest of the country would do well to countenance the hazard the exemptions Mr. Anderson defends would pose to our otherwise healthy liberalism.

*Use of the term ‘all’ is meant to express the idea that even those at the extreme right-wing and at the extreme left-wing agree on the legitimacy of the ideas expressed in the Constitution — among other things, the freedom and equality of persons — and so that any argument for or against gay marriage, or the issue of marriage licenses to gay couples, must ground itself in these universally acceptable principles. We see that conclusions drawn from these principles can vary widely: welfare-state progressivism is one reasonable response to the freedom and equality of persons, but so is hard-line classical liberalism.