What Kim Davis and the Little Sisters of the Poor Have in Common

At first blush, it doesn’t seem that Kim Davis, the Kentucky county clerk who refuses to issue marriage licenses to same-sex couples, and the Little Sisters of the Poor, the order of nuns who refuse to provide contraception coverage in their heath insurance plan, have much in common other than a broad claim to “religious liberty.”

But below the surface their claims have a commonality that speaks to the underlying assumption behind such assertions. As my colleague Sarah Posner has noted here on RD, the root of Davis’ claim is that “the Bible is of a higher authority than a ruling of the United States Supreme Court,” and that, as a result, while Davis “purports to make a religious freedom claim,” she and her lawyers are actually litigating “the very essence of authority.”

As Catholic providers, the Little Sisters supposedly are basing their claim on the specific Catholic doctrinal prohibition against contraception use. But this claim only takes them so far. As I’ve noted before, while Catholic teaching bans Catholics from using contraception, it’s largely silent on the issue of Catholics cooperating with the provision of contraception, such as when a health plan they sponsor covers it. This is in contrast to abortion, where Catholic teaching is clear that Catholics cannot cooperate in the provision of abortion.

The upshot is that, traditionally, Catholic health plans could put one step between themselves and the provision of contraception—such as having another insurer handle the administration of claims—as a kind of doctrinal fig leaf to cover any moral culpability on their part while allowing women seamless access to contraception.

But this tacit agreement over the provision of contraception broke down in the face of the decision by the US Conference of Catholic Bishops to politicize the issue of contraceptive coverage in the Affordable Care Act as part of their “religious liberty” push to forestall legal approval of same-sex marriage. As a result, the bishops and Catholic litigants, like the Little Sisters, refused any accommodation on the grounds that even notification of their intent to recuse themselves from coverage was what triggered such coverage and therefore still amounted to cooperation.

This line of reasoning has been rejected by every single federal appeals court that has heard it to date, including the 10th Circuit, which rejected the Little Sisters’ claim in July, and again last week when it refused to rehear the case. But a rare dissent to the latest decision not to hear the case illuminates the similarities between Davis’ claims and the Little Sisters’ claims:

All the plaintiffs in this case sincerely believe that they will be violating God’s law if they execute the documents required by the government. And the penalty for refusal to execute the documents may be in the millions of dollars. How can it be any clearer that the law substantially burdens the plaintiffs’ free exercise of religion?

The dissenting justices admit that the issue has “little to do with contraception,” which would be the doctrinal basis of the nuns’ objection. Instead, as with the litigating of authority mentioned earlier, it has to do with the nuns’ right to place “God’s law” ahead of the federal appeals court’s opinion that filling out paperwork isn’t a religious liberty issue, but one of basic civil administration.

In other words, according to the dissent, the federal appeals court:

…does not doubt the sincerity of the plaintiffs’ religious belief. But it does not accept their statements of what that belief is. It refuses to acknowledge that their religious belief is that execution of the documents is sinful. Rather, it reframes their belief. It generalizes the belief as being only opposition to facilitating the use and delivery of certain contraceptives to which they object.

The dissenting judges argue that “it is not the job of the judiciary to tell people what their religious beliefs are.” But it is the court’s job to draw a line between what constitutes a religious belief and what is a derivative of that belief.

Like Davis, the Little Sisters and the dissenting judges are arguing that an individual’s interpretation of God’s law should be given deference over the courts’ authority to administer civil law simply because it is a religiously informed belief. That’s a radical claim whether it comes from an Apostolic Christian court clerk or an order of Catholic nuns.

14 Comments

  • reedjim51@gmail.com' Jim Reed says:

    Biblical or religious law would only work in a religious environment, such as church. This is because in church you have control over the people, and so you can cover over the contradictions in the Biblical or other religious law. You can tell the people how to think, and tell them not to question. If you get outside the religious environment, this won’t work because someone might want to expose the contradictions, and push these issues to show the problems in the religion will just grow bigger and bigger the more you look into them. Always remember, beliefs are for believers.

  • robert.m.jeffers@lonestar.edu' Rmj says:

    Actually, it only works where people have agreed to be bound by it. The notion of the Mosaic law is that it arises from the covenant between God and Israel.

    Our Constitutional system works in the same way: the majority of us agree to be bound by the laws of the land. The minority who disagree go to jail; or force us to change the law.

    But even in the latter case, they do it by going to jail.

    No matter what is fundamental is that law only works where people agree to be bound by it. That’s Jefferson’s argument in the Declaration of Independence, and he was right.

    (And religion is not about telling people how to think and not to question. Would that it were that easy. I can always tell someone who has no idea what religion is in the real world, from such reductio arguments.)

  • reedjim51@gmail.com' Jim Reed says:

    I think religious law is about making sure people don’t question. In our system, if there are contradictions in the law then we argue about it, and ultimately the courts decide and over time it gets worked out. Forget the crazy Biblical laws, and just consider the gold standard, the 10 commandments. There are only about 3 of them that still make any sense and could be included in our real laws. The rest are for religious control over the minds of the people, and the moment questioning is allowed, they fall apart.

    I am the Lord your God. Who decides? The church? They decide and don’t allow questions.

    No false idols. That would be a rats nest if it was ever implemented. This is a recipe for persecution.

    Don’t take the Lord’s name in vain. Another way for the church to control people.

    Keep the Sabbath. No.

    Honor your father and mother. Fine if it works, but not for everybody.

    No adultry. Now you need the adultry police. At best this law must only be selectively enforced.

    Don’t covet. I am not sure what this law would be trying to accomplish or how it could be implemented.

  • phatkhat@centurylink.net' phatkhat says:

    Maybe “religion” isn’t about telling people how to think and/or not question, but certain religions certainly have doctrine that do that. I was once in an “apostolic” congregation, and they are very manipulative. I was fortunate that I was in the military, got reassigned, and didn’t find a similar congregation immediately in my new post. It gave me time to reflect, think, and recoil in horror at what I had been coerced into believing. I never went back to church again.

  • bramptonbryan@yahoo.com' DavidHarley says:

    The major difference between Kim Davis and the advocates of civil disobedience, such as Thoreau, or of passive resistance, such as Gandhi and Martin Luther King. is surely that they accepted that there were penalties for breaking the law, however unjust one thought it was.

    Ms Davis and her supporters seem to think that conscience should make them immune from any court decisions. Protests should surely be aimed at changing a law rather than claiming immunity. The more people imprisoned, the greater the pressure.

    I look forward to them defending the rights of Sikhs and Muslims.

  • ajdata@alumni.purdue.edu' A.J. Data says:

    I can understand the criticism of Kim Davis but her situation is easily distinguishable from that of the Little Sisters of the Poor. Kim Davis is a government employee who is using her position to push her religious beliefs which is obviously a big Constitutional no-no. The Little Sisters of the Poor are a private religious organization with their own beliefs and the Court has no business telling them what their beliefs are. Trying to equate the two is simply moronic.

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  • wandersonacflaw@gmail.com' William Anderson says:

    Some questions about this whole Davis line of argument:
    1. If I am a court clerk who believes that divorce is wrong, can I refuse to file divorce decrees and 1ssue them?
    2 Currently death penalty opponents who say they can’t impose death in a capital murder case are excluded from juries, is this Constitutional?
    3 What about a woman who believes that it is sinful to have a child who will be born with severe birth defects and does not find out about those birth defects until week 30 of her pregnancy and believes that it is her religious duty to have an abortionand lives in TX.?
    Sauce for the goose…

  • fiona64@livejournal.com' fiona64 says:

    Don’t be silly. The First Amendment only applies to Christians. /Roy Moore, Bryan Fischer ref.

  • svamigo@hotmail.com' BorderCollierules says:

    When are you coming over to reddit?!?!?

  • tgpenster12@gmail.com' Ted Green says:

    I’ve said it elsewhere, Davis has it wrong in that as an elected official she is bound to the law. Peter had asked Jesus if they should pay taxes to Caesar, Jesus held up a coin and asked him whose picture was on it. Peter said it was Caesar’s. Then, Jesus said, give unto Caesar that which is Caesar’s. And the Bible also teaches us that we are to obey the laws of the land. So how is it that out of one side of her mouth Davis says that she is obeying the Bible and out the other side she is distinctly disobeying the Bible?
    Sorry lady, you are far from being a Christian and you’re an embarassment to those who are. So do us all a favor, especially those folks who want to get married under the law, resign.

  • villabolo@yahoo.com' Villabolo says:

    I’ve heard that Kim Davis identifies herself as an “Apostolic Christian”. Is that a reference to the “New Apostolic Reformation”?

  • jcf1899@gmail.com' JCF says:

    Not necessarily. “Apostolic”, in U.S. Evangelical parlance, is a late 19th/early 20th century term, that derives from the same general pious (emotive) Evangelical tree as “Holiness”, “Pentecostal” and “Charismatic” (it may have some unique theological beliefs: I believe some “Apostolic” Christians have a modalist view of the Trinity, and/or baptize only in the Name of Jesus. I don’t know if Ms Davis’s “Apostolic” is one of these). I believe “New Apostolic Reformation” is a specific theocratic movement (wasn’t Rick Perry in league w/ them a few years back)?

  • jcf1899@gmail.com' JCF says:

    “Moronic”? Pejorative hyperbole much? *smh*

    The Little Sisters are incorporated, and when you incorporate under U.S. law (those nifty 501.C3 tax breaks), you invariably—despite a vow of perpetual chastity!—have to get into bed w/ Caesar. Thems the deal.

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