From the Bishops Gay Marriage and Civil Disobedience: The Place of Conscience

Sep 10, 2015

In the fifth century before Christ, the Greek playwright Sophocles wrote the tragedy entitled Antigone. The protagonist, Antigone, is one of theater's most powerful women. Antigone faces a conflict that is profound and poignant. The newly crowned King of Thebes has forbidden a proper burial for her brother. Does she obey him or does she show the proper respect for her brother? 

Antigone places conscience above human law. She refuses to obey a man-made law. Instead, she insists on obeying the law of the gods. Not even the threat of death deters her. In the figures of Antigone and the king, Sophocles has immortalized the conflict between personal freedom and state control. In the character of Antigone, he has given us one of the oldest depictions of civil disobedience.

In the course of history, many courageous individuals have defied unjust state laws. They have chosen civil disobedience as a way to remain faithful to their conscience. Gandhi in India, the playwright Vaclav Havel in Czechoslovakia's 1989 Velvet Revolution and Nelson Mandela in South Africa's anti-apartheid, to name a few. Not to mention the early Christians who chose to die rather than to burn a pinch of incense to Caesar.  God before the state!

Most recently, a county clerk in Kentucky has made the headlines for her civil disobedience. Kim Davis openly defied the Supreme Court's Obergefell v. Hodges decision redefining marriage. Immediately following the court's decision this June, as county clerk, she refused to issue marriage licenses to gay and lesbian couples. The response to her civil disobedience has been swift, dramatic and somewhat confusing.

On September 3, 2015, District Court Judge David Bunning ordered Ms. Davis to jail. He said that her good-faith belief is simply not a viable defense for disobedience to the law. She had to obey. He ordered her to issue the marriage licenses to same-sex couples. In the words of Judge Bunning, "The court cannot condone the willful disobedience of its lawfully issued order." But, recent events in our country seem to contradict the opinion of this judge.

In Colorado, state officials openly defied federal laws banning illegal drugs. They were never dragged into court. President Obama defied our immigration laws, our welfare reform laws and even his own Obamacare. He has not been dragged into court for his disobedience to the law.

In 2004, gay marriage was banned under California state law. Nonetheless, Gavin Newsom used his power as the mayor of San Francisco against the law. He made government clerks issue gay marriage licenses. Newsom justified his civil disobedience with an appeal to his own beliefs about right and wrong. These came first. This is the very same argument that Kim Davis has made for disobeying the law redefining marriage. Yet, in her case, she must pay the price for following her conscience.

Is there a double standard at work in our secular society? At a time, when gay marriages were not legal, a mayor clearly defied the law with his civil disobedience. He does not go to jail Now, when gay marriages are legal, a clerk who defies the law goes to jail. On what basis can conscience be invoked by those who favor same-sex marriages, but not by those who oppose them? 

Kim Davis does not have to stay in jail. She could comply with the law or give up her job. But, in either of these two scenarios, she would be, in effect, giving in to what she judges wrong. Davis is not the only one in America who conscientiously objects to the Supreme Court's Obergefell v. Hodges decision. In fact, four of the court's judges were against it. Do those citizens whose conscience and religious beliefs do not allow them to redefine marriage lose their freedom to object? Must they be pursued by the courts and jailed? 

During the civil rights movement in this country, the Rev. Martin Luther King, Jr., asked this question, "How can you advocate breaking some laws and obeying others?" He said, "The answer is found in the fact that there are two types of laws: There are just laws and there are unjust laws. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that 'an unjust law is no law at all.'

"How does one determine when a law is just or unjust? A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas, an unjust law is a human law that is not rooted in eternal law and natural law" (Letter from Birmingham Jail, April 16, 1963). 

There are many who, sincerely and honestly, on the basis of their understanding of natural law and God's law, judge erroneous the Supreme Court's Obergefell v. Hodges decision. They may well be in favor of giving every citizen equal rights under the law, but opposed to redefining marriage to accomplish this. What price will they be made to pay for being faithful to their conscience?

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