As you read two days ago, I am among the strongest supporters of Kim Davis’s stand. But let’s be very clear about things. As you also read, this is not about “religious liberty”; it is about interposition of the lesser magistrates. This is why I said every Christian magistrate should be following her example, and every Christian should be supporting it.
But the Christian leaders representing her (and some probably using her case to advance their own publicity) have made this about religious liberty and individual conscience. As lesser-magistrates guru, Pastor Matthew Trewhella, stated yesterday, “Such a position is fine for an individual. But Kim Davis and the other clerks are magistrates, and as such, they possess lawful authority. Their duty goes beyond mere refusal to participate.”
Constitutional Attorneys Herb Titus and William Olson echoed this crucial point as well: “this case is not a matter of her conscience or her personal religious scruples. It is about her civic duty as a civil government official. She resists illegality not because her conscience is offended, but rather it is her conscience and religious beliefs that gives her the courage to stand against lawlessness.”
Further, “Clerk Davis is constrained by her civic duty as an elected official in Kentucky, sworn to uphold the [Kentucky] Constitution. As a lower civil magistrate, there is only one course of action—to refuse to issue the marriage license to the same-sex couple BECAUSE the federal court order requiring her to issue the license is based upon a wholly illegitimate decision by the U.S. Supreme Court that same-sex couples are constitutionally entitled to marry.”
Every Christian involved and concerned to confront this tyranny needs to get this point very clear. The federal court did not put Kim Davis in jail for exercising personal First Amendment rights. She is in jail over a contest of government jurisdictions. She is in jail because the Supreme Court of the Federal government believes the Fourteenth Amendment trumps the State Constitution of Kentucky on the issue of marriage, and more importantly, because every single civil official between her and the Feds stood by idly and watched it happen, implicitly agreeing with the Supreme Court’s belief.
We can be reasonably sure that the Governor of Kentucky and his Attorney General are politically motivated here—liberal Democrats, pro-homosexual marriage. We cannot expect help from them, though as State (Commonwealth) officials they should support their State Constitution in principle against Federal intrusions.
But where has the local sheriff (a Christian) been the whole time? County Commissioners, City Council, State Representatives and Senators? Where were countless other local officials across the state in support? Where were any number of other lesser magistrates, many of whom undoubtedly are professing Christians? What a great stand could have been made against Federal tyranny had there been a “Sheriff First” law in effect here!
What we need is for the thousands of these lesser local officials to band together and lead Christians in a unified, mighty resistance of Federal tyranny. Pastors and pulpits across this land should thunder with the message of the magistrates’ duty as God’s minister (Rom. 13), and thus their duty to protect the people from ungodly intrusions from higher powers.
But a great disservice is done here when we focus only on individual “religious liberty.” This is not about Kim Davis the individual; it is about Kim Davis in the official capacity as County Clerk. This is not just about religious liberty but about intrusion of Federal power into state and local government. Focusing on religious liberty diverts all attention from the only avenue of possible victory we have. It is a sure way to lose, as we can see already.
The “religious liberty” defense will, therefore, ensure a failure for the cause, but in the meantime it will provide the image of a bold stand for high-profile conservative politicians. “Religious liberty” will make for good fundraising. It will make for good photo-ops beside Mrs. Davis in court and jail. It will generate publicity—but no substance of change or foundation upon which to build future change.
“Religious liberty” is, in the media, an emotional hook for conservatives and Christians. It has no judicial teeth without multiple levels of active government protection. What we need is not an emotional appeal; we need a judicial bulwark.
What needs to happen? Trewhella puts it:
Other magistrates—sheriffs, district attorneys, judges, and legislators from all spheres of government—should rally around these clerks and defend them against federal aggression.
True federalism understands that all magistrates—whatever their level or sphere of jurisdiction—possess lawful authority. And that whenever one branch of government begins to play the tyrant—all other branches (whether federal, state, county, or local) have the duty then more than ever to uphold the Constitution and oppose that branch—even if that branch is the Supreme Court.
Even before the jail sentence was handed down, Titus and Olson foretold:
Clerk Davis cannot resign, and cannot capitulate; but she must resist by interposing herself as a lower civil magistrate sworn to uphold the law, not just to do what a higher civil magistrate has ordered her to do. . . . Clerk Davis’ courage just might inspire those in authority to have the courage of what they claim to be their convictions and join in the resistance.
We now desperately need to see that inspiration take place and the spark of lesser magistrate courage become a firestorm of interposition across the country.
As I see it, there are a few things lacking to make this successful. I will not blame the local Sheriff, etc., for lack of courage. I think they are merely ignorant of lesser magistrate doctrine, interposition, etc., like the vast majority of the American population. Some education is in order here. But it is not much, nd it can be done quickly. And it will become a true test of their courage once they know the truth. This may or may not be lacking, time would only tell.
The main thing lacking is organization among Christians. Political activism is ineffective without organization. But organization takes 1) leadership, and 2) a unified message with a plan of action. Right now we essentially lack both. And worse, what leadership is at the forefront is preaching the message of “religious liberty” instead of Interposition. This may possibly unify Christian sentiments, but it will not energize them or provide the necessary plan of action.
This is where the pulpits must come in. The foundation for the needed and proper unity will come through the message of the magistrates’ duties before God, and duties to resist the tyranny of godless overlapping jurisdictions.
As you can imagine, repeating “religious liberty” is much easier that training a generation of Christians “the doctrine of Interposition by the lesser magistrate.” But God did not call us to that which is easier. He called us to a strait (difficult) and narrow path. We either take that path, or we’re headed for the destruction to which the easy one leads.
For those of you who would like to hear, Pastor Trewhella will be speaking at the Kim Davis Jailhouse Prayer Rally tomorrow, Saturday, September 5th at 11:00 am at the Carter County Detention Center, 13 Crossbar Rd. Grayson, KY. I am sure his comments will give the proper theological perspective to what has happened and what needs to. I encourage every lesser magistrate possible to attend, learn, and apply this theological basis in earnest service to their Lord and savior.
[Those interested in learning more about the roles of local government, true federalism, interposition, states’ rights, and many more related ideas, see my Restoring America One County at a Time.]