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Wednesday, September 23, 2015

When does religion trump the law?

Posted by Scott Tibbs at 4:00 AM (#)

The Kim Davis case has been made out to be very simplistic by both sides of the same-sex marriage debate, but it is actually much more complicated and deserves to be thought about much more carefully than a #DoYourJob hashtag in a 140 character Twitter post.

Last week, a letter to the editor attacked a Democratic county clerk in Kentucky for refusing to approve marriage licenses for same sex couples.The author closed his letter with the statement "Religion is important. But it does not trump the law." In my comment, I asked: Does that mean you would condemn Corrie Ten Boom?

Predictably, Leftists became outraged by my question. But the Leftists who are outraged miss the entire point. What I was doing was testing the principle that "religion does not trump the law." So if that is the principle, does the author believe Corrie Ten Boom was wrong to hide Jews from the Nazis? Remember, I am not the one who laid out that principle. The LTTE author did. I am testing to see if he really believes it.

Here's the problem with the argument the author makes: It is way too simplistic. Religion does not trump the law, and religion does trump the law. That is the point of the Religious Freedom Restoration Act signed by Bill Clinton in the 1990's. To require someone to violate their religious convictions, the government has to show a compelling state interest that cannot be accomplished by other means. This does not mean that the government may never pass or enforce a law that violates religious principles, only that it faces strict scrutiny when doing so.

In some cases, people have been prosecuted and executed for "obeying the law," such as when soldiers commit war crimes. Saying they were "just following lawful orders" does not mean they did not commit a crime.

No, I am not saying Kim Davis is the moral equivalent of Corrie Ten Boom. And yes, I admit that I used an extreme example. But I used an extreme example to make a point: That there is a line where someone can use his religion to justify disobeying the law. Once we establish that there is a line, we then begin the hard work of determining where to draw that line - sometimes on a case-by-case basis. That is not the easy way out, so it is understandable why people would prefer Twitter hashtags to difficult philosophical questions.

When religion can be a legitimate reason to disobey the law (legally or philosophically) and when it cannot be used as a reason to disobey the law requires a much more complex and sophisticated thought process than simply making the state into a deity in and of itself. Because when you say "obey the law" above and beyond anything else, then you place the civil magistrate above God, and make the government into a god.

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