In a piece entitled, “Kim Davis and the Rule of Law: Lessons from Kentucky,” Judge Andrew P. Napolitano recently weighed in on the controversy surrounding the Rowan County clerk’s refusal to issue marriage licenses to same-sex couples, which resulted in her five-day incarceration. Napolitano notes that Davis “argued that she was following her conscience, which is grounded in a well-known Christian antipathy to same-sex marriages, which, in turn, is protected by the Free Exercise Clause of the First Amendment.”

But the good judge takes issue with this reasoning: “By adding her own requirement and using the force of law to enforce that requirement, she is frustrating the ruling of the Supreme Court, interfering with the fundamental liberties of marriage applicants, and violating her oath to uphold the Constitution, the final interpreter of which is the Supreme Court.” While Napolitano believed that it was wrong for the court to incarcerate her, he notes: “Davis is running a county clerk’s office, not a church and not a legislative body. Moreover, her imposition of her own religious requirement upon the license applicants violates the well-respected and long-held First Amendment value of separation of church and state. She is free to believe as she wishes and to practice her beliefs, is free to impose her beliefs on her children and family, and is free to attempt to persuade others of the salvific value of her beliefs. But she is not free to use the force of law to further her beliefs by denying legal rights to those unwilling to accept them.”

He goes on: “If her personal religious views could trump her obligations under the law when she is in a ministerial and not a discretionary government job, and other government officials similarly situated could do the same, then we’d lack the rule of law in America, and we would live instead under the discretion of bureaucrats.”

While Judge Napolitano’s assessment is hardly novel, situated as it is in decades of legal precedent, what concerns me about the logic of this argument is the fallacy of equivocation; the argument assumes that the separation between church and state entails the separation between religion and law. In other words, the judge’s argument equates an institutional separation with a categorical separation.

The judge seems unaware that there is an increasing body of scholarship that calls into question the very possibility of this separationist paradigm. Insomuch as the role of religion in modern society is determined not by theologians but by lawyers, judges, and politicians, such bureaucrats must by definition engage in various forms of theologizing. Just as one cannot define, say, chemistry without recourse to some form of scientific reasoning, so one cannot define religion apart from religious reasoning. In this sense, anthropologist Talal Asad claims any state that maintains the basic conditions for the practice of religion in society is itself inescapably religious. Even in a self-proclaimed secular nation, law and religion are not completely separate; the boundary is porous at best, deceptive at worst.

As moderns, it is easy for us to forget that what we call “religion” is actually a fabricated invention of the eighteenth-century Enlightenment. By redefining religion as a matter of personal conscience rather than public policy, the Enlightenment reimagined the human person as a sovereign individual, devoid of any divine obligation apart from that which he chose to impose upon himself. The public square was in turn re-envisioned as a place of political emancipation, where the secularized state would liberate individuals from traditional social structures and arrangements that impeded them from exercising social control over their own life circumstances.

The irony in this is that “religion” has been redefined by the very institution that claims to protect its free exercise. The state has simply redefined religion in such a way that excludes itself from the redefinition. As a result, bureaucrats are free to impose their own religious reasonings and opinions on populations while denying that very prerogative to others.

Thus, in assuming the separationist paradigm – that law and religion occupy different social domains, the public and the private – Napolitano perpetuates the illusion of the state’s religious neutrality. He diagnoses the illegitimate imposition of religious requirement on the part of Davis while ignoring the arbitrary religious reasonings and opinions imposed upon the American public by the judiciary.

The real lesson from Kentucky is this: the only religious opinions that are allowed to be imposed legally on others are from bureaucrats who claim they are not religious.

The renowned Harvard law historian Harold Berman long ago recognized that all legal systems are based on beliefs or confessions of faith. The question is therefore never whether we are going to have a legal system based on and interpreted by creedal commitment, but rather which one. Kim Davis, in her own way, contested the arbitrary privileged status of secular liberalism as the reigning religious paradigm of our time. Given the inconsistency inherent in an avowed religiously-neutral state, I don’t think she will be the last. I hope that future challenges can elicit more than mere regurgitations of the dualistic frames of reference that evoke such contestations in the first place.


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