What Kim Davis Knows (Or Thinks She Knows) About Marriage, the State, and Sexuality

This morning a judge freed Kim Davis, the heretofore obscure Kentucky county clerk who has made national headlines because of her refusal to issue marriage licenses to same-sex couples. As of this writing, her next move has not yet been broadcast, but the story is certain to continue.

Part of what makes Davis’s case compelling is her claim to religious freedom and the implicit question her behavior raises about what constitutes permissible civil disobedience. (It is worth noting that, contra to their current outcries in favor of obeying the law and staying neutral, liberals tended to take a pro-civil disobedience position when clerks were illegally issuing licenses to same-sex couples in the mid-2000s.) But I think these shiny objects are occluding something more fundamental.

I want us to consider, instead, the root object under debate—the marriage license itself.

Contemporary American culture tends to view the marriage license as a completely secular governmental device (the mechanism by which a couple can enter into a legal civil marriage). In this view, it is, then, certain people, such as Kim Davis, who impose their religion onto this otherwise neutral license. This understanding recently made possible a funny joke—really a send up of the Davis affair—about an Amish person taking a job at the DMV and then refusing to issue drivers licenses to anyone because of her personal religious objections.

There is, however, good reason to doubt this formulation. I think we should, instead, view the marriage license as a religiously charged means of regulating marriage. The U.S. system of state-issued marriage licenses originated in John Calvin’s sixteenth-century Geneva during the Protestant Reformation. As John Witte, Jr. notes, these state-issued licenses were originally devised as a way to convey the consent of, not only the couple getting married, but also “of parents, parishioners, and citizens in the process” of marriage formation. This role of giving third-party consent to union is still operative.

In this marriage license system created by the Reformed tradition, the state and the church have separate but complementary roles to play in advancing a religious (read Christian) society. As Mary Anne Case has shown, U.S. Protestants are often troubled by changes in state marriage laws because of how they have long used these laws to manifest their religious visions of marriage in society.

In other words, this is an example of Janet R. Jakobsen and Ann Pelligrini’s point that, in the U.S., “the secular state’s regulation of the sexual life of its citizens is actually religion by other means.” All of this aligns, generally speaking, with Winnifred F. Sullivan’s recent remark that “[e]stablishment, not free exercise, is the natural way of government, in the United States and elsewhere.” This form of establishment, for example, helps explain why religious leaders can simultaneously serve as public officials while conducting weddings in their religious roles and in religious settings.

But this close relationship between (certain) religious groups and the state is fraying. In the U.S., marriage has been undergoing a profound process of disestablishment over the latter half of the twentieth and first decades of twenty-first centuries. It has progressively become more plastic, less gendered, etc. (See, for example, Nancy Cott’s discussion of this phenomenon).

It is the slow decoupling of church and state around marriage that has many Protestants worried and frustrated. So far 2015 has seen an uptick in reactionary moves by certain Americans on this front because of the rapid legalization of marriage for same-sex couples (accomplished mostly through court decisions). These anti-disestablishment efforts include, among other efforts, some lawmakers’ attempts to restrict the issuing of the marriage licenses to religious leaders.

Now Kim Davis, through her capacity as a county clerk, is trying to forestall this fraying by refusing to issue marriage licenses to same-sex couples. Sarah Posner points out that while Davis is an Apostolic Christian—a group which claims a “direct line from the early church,” as Anthea Butler describes here— her insistence on God’s authority is in line with Christian Reconstructionist theology.

The Christian Reconstruction movement seeks, as John Calvin did centuries prior, to have government operate from a Christian basis, even though the church remains separate and independent. In other words, Davis is fundamentally opposed to the disestablishment of marriage and that is the cause of her freedom of religion claims that the U.S. Supreme Court refused to hear. She wants civil marriage to remain, at its roots, a form of religious marriage. Davis’s claim that she was refusing to issues marriage licenses under “God’s authority” is not as bizarre as it initially sounds.

What I am saying, in short, is that the Kim Davis affair is an epiphenomenal event in the slow process of secularizing the religious marriage license and marriage more generally in the U.S.

Correction: an earlier version of this story linked Apostolic pentecostalism with the Calvinist-based Christian Reconstructionist movement. The traditions share an emphasis on the primacy of the Bible over civil law, but they differ both historically, as Sarah Posner notes, and on key theological points. –The Eds

  • Eric

    “It is worth noting that, contra to their current outcries in favor of obeying the law and staying neutral, liberals tended to take a pro-civil disobedience position when…”

    It is also worth nothing that Mrs. Davis’s refusal does not fit the criteria of “civil disobedience.” She might believe Obergefell to represent an unjust case law, and she might believe being asked to do her job as an agent of the state expected to accord with that law to represent a personal moral dilemma. Yet she had an option to avoid that dilemma–resigning–that would be a refusal of complicity in immorality as she saw it *and* would not involve denying other people their own civil rights.

    Surely claims of “civil disobedience” lose their moral authority when “disobedience” infringes on the rights of others.

  • Rmj

    It does. There’s also the primary principle of civil disobedience: accepting punishment under the unjust law to illustrate just how unjust the law is (“They send people to jail for that?”) Thoreau, Gandhi, King, all accepted jail in order to underline the unjust law. Davis wants the law changed to suit her personal preferences.

  • Rmj

    Davis’s claim that she was refusing to issues marriage licenses under “God’s authority” is not as bizarre as it initially sounds.
    No, it’s still as bizarre, even though I already knew all of that. Although Protestantism from its beginning among the German princes was forged and created in the culture (as was the Roman church centuries earlier, but it retained that culture even as that culture faded away) and became a creature of the culture.

    And now, as that culture withdraws from it and Protestantism can’t keep up, can’t draw succor or support from it, can’t continue to reflect it and seem to control it (it was usually the other way around, but then I’m a theologian/child of the ’60’s), the melancholy, long withdrawing roar is heard in the Obergefell decision. The society Protestantism once depended upon to be its superstructure is refusing to hold it up any longer. But then, it never really did; not in America, anyway.

    Not since the Warren Court, to be sure. Taking prayer out of schools, or rather canceling the obligatory daily prayers, was probably the beginning. But the “authority of God” has, almost from the beginning, been the authority of those in power, something the Deists in the late 18th century understood, even as they couched their critique in anti-Roman terms (a most disagreeable form, today). The “authority of God” still comforted Babbit and Elmer Gantry, but even then it was seen to be withdrawing swiftly, going out with Arnold’s tide on Dover Beach.

    I mean, I’m an ordained minister, but who talks like that about the law? “God’s authority”? Even Jefferson would have found that bizarre.

  • Jim Reed

    Secularizing marriage in America is a slow process, but the collapse of fundamentalist Christianity in America seems to be becoming a rapid process.

  • SWPA1111

    Key words being unjust law. This isn’t an unjust law. Clerks issuing marriage licenses to same-sex couples 15 years ago knew the paper wouldn’t hold up in court.

  • Jeremy Bangs

    Civil marriage was introduced into English law in Plymouth Colony on May 12, 1621, with the marriage of Edward Winslow and Susanna White. Civil marriage did not come from Geneva. William Bradford wrote that that marriage was the “first marriage in this place [Plymouth Colony], which, according to the laudable custom of the Low-Countries, in which they had lived,was thought most requisite, to be performed by the magistrate, as being a civil thing, […], and nowhere found in the gospel to be laid on the ministers as part of their office. This decree or law about marriage was published […] Ano: 1590. That those of any religion, […] coming before the magistrates in the Town, or Stat-house [Dutch: stadhuis], were to be orderly (by them) married one to another.” Bradford cites”Petet’s Hist. fol: 1029″ – a reference to E. Grimestone (translating from J. F. Petit, E. Demetrius van Meteren, and others), A Generall historie of the Netherlands (London: 1608). Grimestone, p. 1029, has “The Catholikes made no great question about their baptizings and burialls, and touching marriages, it was decreed by a publike proclamation, that all such as were not of the reformed religion, (after lawfull and open publication) comming before the Magistrates in the towne-houses, were orderly giuen in marriage one vnto an other.” The Dutch practice of civil marriage that the Pilgrims had experienced in Leiden was devised to establish legal marriages and legitimate off-spring for the non-Reformed (Catholics, Lutherans, and Mennonites, and, later, the English Separatists we call Pilgrims). At the time, Reformed ministers were chosen from a double-number of candidates nominated by the church board, but the choice was made by the civil magistrates. The Dutch Reformed ministers, therefore, could be considered by their appointment to fulfill a mixed ecclesiastical and civil role, so that their solemnization and recording of marriages was legitimate as civil law. But Catholic priests, Lutheran ministers, Mennonite leaders, and the Pilgrims’ minister John Robinson were not in any way authorized by the civil government. Civil marriage registration was the solution; and it is not somehow a development conceived in Geneva. From Plymouth Colony, the practice spread in New England during the 17th century, in contrast to the theocratic system of the Church of England as the locus of marriage solemnizations.The introduction of civil marriage and the consequent separation of church and state that it implied constitutes one of the major contributions of the Pilgrims to subsequent American society.

  • 4 WIW

    A few minutes of web research on the history of marriage licensing took me to an article that stated that marriage licensing in the early US history was propagated to control (read: prevent) interracial marriage. To the extent that this is true it is one more example of distorting the Scriptures to obtain a preferred social construct. We have become so numb to custom on marriage that we don’t question much of the trappings of modern marriage practices in the West. My opinion is that we should end state-sanctioned marriage licensing. Let people get married where they want to. Keep Christian marriage sanctified and let the unregenerate world do as they please – they will any way.

  • Whiskyjack

    The death knell of religion in America has been sounded more than once in the past century. I’m not as confident as you are that its influence is waning.

  • Jim Reed

    Try to be more positive.

  • Jim Reed

    What does unregenerate world mean?

  • EqualTime

    I agree that this case is further evidence of the de-coupling of religion and government. Our American society is experiencing what might be referred to as a Second Enlightenment, in which the basis for religious belief is being scrutinized by young and old – a process which is fueled, in part, by the harsh judgement many, but not all, Christians are exercising on their fellow man, in contrast to the second to none commandment – love your neighbor as yourself, as well as the strong evidence that it is difficult to reconcile the existence of an all powerful, all loving God with the harm that is done in His/Her name around the world – be it God, Vishnu, or Allah. US Christians can fight it – which is more likely to result in an equal and opposite reaction – or go with it, and understand that if the answer is “because the Bible says so” – it is something to guide their personal conduct, not the government’s.

  • kinggator2

    Those contemplating leaving their religion, or simply having doubts, never had access to the internet before. Think for a moment of the hoops someone would have had to jump through to access skeptical literature prior to its advent. One may have had doubts, but where and how would they have been reinforced prior to the internet? One may access endless streams of skeptical, anti-religious literature in seconds now, whereas before one would have had to… I’m not even sure. Libraries probably carried little, the local newsstand still less. Knowledge is death to superstition, and now knowledge of that sort is available at the touch of a button. Religion will always be with us, but it’s on its way to becoming marginalized to the point of irrelevancy in most instances. And good riddance.

  • Whiskyjack

    Good point. It may be different this time. I guess we will just have to wait and see.

  • Daniel King

    But, the Internet also gives Christians the power to spread their beliefs rapidly. On a level playing field, Christianity will continue to spread. What you call “superstition” others call “faith” and faith will always have more power than doubt.

  • Craptacular

    “On a level playing field, Christianity will continue to spread.” – Daniel King

    You have some proof of this? And what do you mean by a “level playing field?”

  • NancyP

    The state recognizes that it has no interest in defining the exact religious content of marriage and determining the religious suitability of candidates for marriage. That would entail dabbling in theology, something best left alone by the state. The state does have an interest in defining eligibility according to the local legal definition of marriage, inheritance, legal parentage, joint responsibilities, tax burden, immunity (or not) from having to testify about a spouse’s activity in criminal court, and so on. The state sets and enforces laws. The non-legal aspects of marriage are too non-quantifiable and nebulous to be readily handled by bureaucrats.

  • Jim ‘Prup’ Benton

    Just a nod of thanks to someone who seems to be a newcomer. I hope you’ll stick around, if this is an example of what you can bring us. (And if you are a long-time contributor whose name I missed or forgot, the nod still stands and is deserved.)

  • I am not the scholar on marriage that the author is, but I find his argument questionable. A marriage certificate merely states that the couple involved have met the standards necessary for a marriage within the jurisdiction, period. It does not infer a religious obligation or stricture, anymore than it represents a specific religious viewpoint. Marriages were historically used to solidify lines of inheritance, alliances for political or economic reasons, or the creation of new social structures. There were, and continue to be, strong civil components within a legal marriage, and the religious components are no longer a factor in many marriages. Two people no longer need to marry within their faiths or races, because such strictures no longer apply within our society.

    The marriage license was never about religious control, only about civil control to enforce social standards for legal issues. This author has taken the issue of religious control and apparently completely ignored the history of marriage in its totality as a legal or political tool, not a religious one. That Kim Davis seems intent on forcing her religious beliefs on the citizens of her community while doing a public job is grounds for impeaching her come January.

    Suggesting that she is trying to use her religious beliefs to control a civil, legal matter as a form of religious governance is a stretch, just as saying her religious liberty is at risk if she does issue these licenses. Religions have historically controlled government, but when our nation was founded we embraced a separation of church and state, and that separation still continues today. This woman must resign or be impeached before she establishes a norm that never actually existed in this nation for good reason, and we find ourselves only able to marry if we conform to this twisted interpretation of Christianity that seems to have found new ground in which to flourish in the GOP.

  • andrew123456789

    The license itself may have a weird religious origin, but marriage as an institution is certainly, and always has been, a socio-economic phenomenon and tool. Calvin didn’t hold a patent for that. Further, the implicit claim of “liberals” (read: normal fair-minded humans) supporting clerks’ disobedience of the law in issuing licenses to same-sex couples being parallel to the current case is insufficient. Previously as now, said laws were against the U.S. Constitution, and were interpreted as such by those who saw clearly on the issue. Davis and her frenzied supporters are not making the same claim now (except for those attempting to pretzel the text of the Constitution to make it work); no, they are rather saying that their law supercedes the Constitution, regardless of any violation. Indeed, they celebrate that difference and get to play heroes and martyrs. This article is interesting and edifying, but I wanted to address this small point because of how such things have become so metaphorically explosive in current social media exchanges.

  • andrew123456789

    Mr. King’s prediction is no more in need of “proof” than the previous claim that “knowledge is death to superstition.”

  • Jim Reed

    Faith is belief in things untrue. Eventually faith will have to fade away as the beliefs do.

  • Jim Reed

    It is a battle of escalation. Skeptics will do things to show religion is nonsense, and religion will do things to show they don’t care.

  • gilhcan

    Very sadly, William Smith doesn’t know any more about the evolution of marriage from a sometimes religious institution, bound up with parental and family permissions, than Kim Davis.

    This country’s founding on disestablishment–check the first clause of the First Amendment to our Constitution considered individual rights–meant that we had moved beyond church and religious control of families, individuals, and civil government. That is popularly known as “separation of church and state.” It is also the separation of religion and government, even religion and individuals.

    Marriage, like other human behavior that requires legal protections because it can have repercussions on others, like previous spouses, current spouses, children, etc, has the need for civil, legal protections. That also includes disease. You know, the sexual activity presumed in marriage can cause medical problems. Even pregnancies, fetuses, and babies must be protected.

    Those who wish to consider marriage as a religious institution can still pursued it from that angle–in addition to the civil ramifications we have added to it in this non-church-state society. We have even permitted church ministers the convenience of functioning as presiders over marriages that religious people wish. However, those ministers are required to do so only by satisfying the same civil requirements as civil presiders, assuring civil licenses have been procured first, and reporting to civil authorities that they have fulfilled the civil action of presiding even though they have added religious aspect to such a ceremony..

    A religious ceremony does not eliminate marriage from also being a civil action. There are two aspects to marriage, civil for everyone, civil and religious for those who wish. In this civil society, marriage is civil for everyone, civil and religious for those who wish. In some countries, a separate religious ceremony presided over by a civil magistrate is still require before any religious ceremony can be pursued.

    Prince Ranier and Grace Kelly had to satisfy the requirement of a civil ceremony, separate from their religious ceremony, before they could pursue their religious ceremony. Even Monaco has caught up with the separation of church and state. Kim Davis and William Smith need to do the same.

  • gilhcan

    We shouldn’t have to wait and see. That is a main reason we have laws. The problem is the violation of laws and the time and money it takes to have them clarified and enforced. Of course, if laws were written more clearly, there would be no need for further clarification, only enforcement. And the last is the reason we have law enforcement agencies, including courts and judges.

  • gilhcan

    The spreading of beliefs had always depended on the acceptance of beliefs by other people. That is where the application of intelligence to learning is vital. We must go beyond the study of a single book, even many books, to become learned.

  • gilhcan

    Don’t forget, we have long had libraries. For centuries before the internet, there were libraries. Too often, access was not easy. In too many cases, books and libraries were locked to avoid access to the public. You can relate the reduction of libraries now to the growth of the internet. But the internet can never match the extensive attention given to a single subject as books did–and still do.

  • gilhcan

    Look at church activities, church attendance, and be open and ready to measure their legitimacy and authenticity on more than emotion. Church attendance is dropping precipitously. For instance, the crowds you used to see on Saturday afternoons and evenings in Catholic churches for confession have disappeared.

    People just don’t accept all those “sacraments” that were invented to control life from birth to death. They have lost religion. It will take time, much time in many instances, to find a replacement for beliefs that have lost their foundation.

  • gilhcan

    Religion became a culture of its own. Religious belief was supported by itself, by myth, by superstition. As science, sociology, and psychology increased the presentation of proven realities, religious belief, more and more, could not maintain its old stability.

  • kinggator2

    But that’s my point; I doubt libraries carried much in the way of skeptical literature, and, frankly, your average believer with doubts would rarely be motivated enough to find out. Without being able to google something as simple as ‘did jesus exist’ how would you even know that literature existed? I’m not saying it was impossible, but I am saying that if someone has casual doubt how many hoops would they have to jump through to investigate those doubts? The fewer hoops, the more doubters access the info. Hell, most people don’t even read books. Now, information is available in seconds. Someone says something that sounds fishy, you can be informed in minutes on the topic. Books are great; I’m a fan. You can’t really know anything about anything if you don’t read actual books. But they aren’t the internet either. Think you hear something that doesn’t make sense in Sunday school? Two minutes online and that little bit of superstitious nonsense is toast. Seriously, the internet is the Gutenberg Press of modern times; it’s a world changer.