Years ago, Kim Davis, a country clerk in Kentucky, refused to issue marriage licenses to same-sex couples on the grounds that doing so violates her religious beliefs. When questioned about this, she replied acted “under God’s authority.” It was argued that it would violate her religious freedom to be compelled to follow the law and do her job. This past situation raises numerous important issues about obedience and liberty. I am reconsidering this issue because of moral questions about obeying commands from the Trump administration that an official might disagree with. As a philosopher, I endeavor to follow my principles consistently rather than having one principle for when I like what someone is doing and another when I dislike the same sort of action, such as disobeying the state.
When taking a position in situations like this, people generally do not consider the matter in terms of general principles about such things as religious liberty and obedience to the state. Rather, the focus tends to be on whether one agrees or disagrees with the very specific action. In the Davis case, it is not surprising that people who oppose same-sex marriage agreed with her decision to disobey the law and claim that she had a moral right to do so. It is also not surprising that those who favor same-sex marriage tended to think that she should have obeyed the law and that it was morally wrong for her to disobey the law of the land.
In the case of officials who have resisted the immigration policies designed by Stephen Miller, those who agree with these policies will tend to think that the state should be obeyed and these will surely include people who supported Kim Davis’s view. Those who oppose these policies, which will include people who thought Davis should have obeyed the law, will be inclined to support disobedience to these laws and policies.
The problem with this sort of approach is that it is unprincipled. Unless being in favor of disobedience one likes and opposing disobedience one dislikes is a reasonable moral position. Moral consistency requires the application of a general principle that applies to all relevantly similar cases, rather than simply going with how one feels about a particular issue.
In regard to the situation involving Davis, many of her defenders tried to present this as a religious liberty issue: Davis was wronged by the law because it compelled her to act in violation of her religious beliefs. Her right to this liberty presumably outweighs the rights of the same-sex couples who expected her to follow the law and do her job.
In the case of officials resisting immigration laws and policies, their reasoning would be based on moral grounds and that morality trumps the law and policy in this case. The matter is also complicated by the fact that the immigration “enforcement” sometimes violates the law.
Having been influenced by Henry David Thoreau’s arguments for civil disobedience and by Thomas Aquinas, I agree that an individual should follow her informed conscience over the dictates of the state. The individual must, of course, expect to face the consequences of this civil disobedience and these consequences might include fines, being fired or even spending time in prison. Like Thoreau, I believe that a government official who finds the law too onerous should endeavor to change it and, failing that, should resign rather than obey a law they regard as unjust. As such, my general principle is that a person has the moral right to refuse to follow a law that their informed conscience regards as immoral.
In the case of Davis, if she acted in accord with her informed conscience, then she had the moral right to refuse to follow the same-sex marriage law. However, having failed to change the law, she needed to either agree to follow this law or resign.
In the case of immigration, the officials should take the same approach. However, when the law is violated by the federal government, then the state and local officials have the right to resist. They would, after all, be the ones following the law.
That said, I understand a person’s informed conscience can be in error—that is, what she thinks is right is not right. It might even be morally wrong. Because of this, I also accept the view that while a person should follow his informed conscience, the actions that follow from this might be morally wrong. If they are wrong, the person has obviously acted wrongly. But, to the degree that they followed their informed conscience, they can be justly excused in regards to their motivations. But the actions (and perhaps the consequences) would remain wrong.
Since I favor liberty in regard to marriage between consenting adults (and have written numerous essays and a book on this subject), I believe that Davis’ view about same-sex marriage was in error. Though I think she is wrong, if she acted in accord with her informed conscience and due consideration of the moral issue, then I respect her moral courage in sticking to her ethics.
In the case of how immigration has been handled under Trump, I see it as consistently immoral and probably often illegal (I’ll leave that to the lawyers). As such, I would generally see resisting the immoral and illegal actions as morally correct.
While subject to the usual range of inconsistencies, I do endeavor to apply my moral principles consistently. As such, I apply these principles to all relevantly similar cases. As such, whenever there is a conflict between an individual’s professed moral views and the law she is supposed to enforce, I ask two questions. The first is “is the person acting in accord with her informed conscience?” The second is “is the person right about the ethics of the matter?” This is rather different from approaching the matter by asking “do I agree with the person on this specific issue?”
As noted above, some of the defenders of Davis cast this as a religious liberty issue. In this case, the implied general principle would be that when an official’s religious views conflict with a law, then the person has the right to refuse to follow the law. After all, if religious liberty is invoked as a justification here, then it should work equally well in all relevantly similar cases. As such, if Davis should be allowed to ignore the law because of her religious belief, then others must be allowed the same liberty.
As might be suspected, folks that oppose same-sex marriage on religious would probably agree with this principle—at least in cases that match their opinions. However, it seems likely that many people would not be in favor of consistently applying this principle. Let us consider immigration.
The bible is reasonable clear about how foreigners should be treated. Leviticus, which is usually cited to condemn same-sex marriage, commands that “The foreigner residing among you must be treated as your native-born. Love them as yourself, for you were foreigners in Egypt. I am the LORD your God.” Exodus says “”Do not mistreat or oppress a foreigner, for you were foreigners in Egypt” while Deuteronomy adds to this that “And you are to love those who are foreigners, for you yourselves were foreigners in Egypt.”
Given this biblical support for loving and treating foreigners well, ICE agents and immigration officials have religious support for refusing to enforce immigration laws violating their conception of love and good treatment. For example, a border patrol agent could, on religious grounds, refuse to prevent people from crossing the border. As another example, a judge could refuse to send people back to another country on the grounds of what the bible says about treating the foreigner as a native born. I suspect that if officials started invoking religious freedom to break immigration laws, there would be little or no support for their religious liberty from the folks who support religious liberty when it comes to discrimination.
As another example, consider what the bible says about usury. Exodus says, “If you lend money to any of my people with you who is poor, you shall not be like a moneylender to him, and you shall not exact interest from him.” Ezekiel even classified charging interest as an abomination: “Lends at interest, and takes profit; shall he then live? He shall not live. He has done all these abominations; he shall surely die; his blood shall be upon himself.” If religious liberty allows an official to break or ignore laws, then judges and law enforcement personnel who accept these parts of the bible would be allowed to, for example, refuse to arrest or sentence people for failing to pay interest on loans.
This can be generalized to all relevantly similar situations involving law-breaking or law ignoring by officials who do so by appealing to religious liberty. As might be imagined, accepting a principle that religious liberty grants an official an exemption to the law would warrant the breaking or ignoring many laws. Given this consequence, accepting the general principle of allowing religious liberty to trump the law would be unwise. However, it is wise to think beyond one’s feeling about one specific case to consider the implications of accepting a general principle.