The defenders of Kim Davis, the Kentucky county clerk who attempted to block her office from issuing marriage licenses after the Supreme Court’s decision in Obergefell v. Hodges, have retroactively been claiming that Davis was simply seeking a religious accommodation that would keep her name off such licenses. (This is despite the fact that Davis claimed that she was acting as an agent of God in keeping gay couples in her county from getting married.)
In an interview with Alaska conservative radio host Joe Miller this week, prominent Christian Reconstructionist John Eidsmoe, who now works for the foundation established by Alabama Chief Justice Roy Moore, argued that if Davis were to resign from her position or seek a religious accommodation to avoid being involved in gay marriages, that wouldn’t be enough. Instead, Eidsmoe said, lower courts and elected officials like Davis must “interpose” to “nullify” the marriage equality decision, which was made by a Supreme Court that has “become disobedient against God.”
Miller, who was Alaska’s Republican nominee for the U.S. Senate in 2010, agreed, adding that if officials like Davis resign, they are “basically clearing the field” for “additional persecutorial-type behavior by government.”
Tellingly, both Eidsmoe and Miller will be attending next week’s “National Religious Liberties Conference” in Iowa, whose organizer’s idea of religious liberty is the liberty of conservative Christians to execute gay people. (Republican presidential candidates Ted Cruz, Mike Huckabee and Bobby Jindal are also scheduled to speak at the conference.)
Absolutely. In fact, there are many who say that what she should have done in those circumstances is simply resign her position in protest. I would say that if she had resigned, likewise, if Chief Justice Moore had resigned from the Supreme Court over the Ten Commandments issue, they would be betraying the people that elected them. Under the doctrine of lesser magistrates, or interposition, as you sometimes call it, when a higher magistrate, like the U.S. Supreme Court or a federal judge, begins to act in an extralegal and tyrannical manner, it is the duty of lesser magistrates like state courts and state judges, county clerks and the like to interpose, that is to stand between the people they represent against the tyranny of the higher magistrate.
You might say that if the higher magistrate has become disobedient against God, for the lower magistrate to simply follow what the higher magistrate says would make the lower magistrate complicit in this act of disobedience. I think she has a duty to stay on and a duty to resist. What they’re trying to do in that case right now, of course, is they’re trying to work out an accommodation where we could say that the law has a duty to accommodate those who have religious objections. That’s fine in so far as it goes, but it doesn’t go far enough. Rather, they need to recognize that this whole decision is illegitimate and it needs to be nullified.