Kim Davis was jailed not because she refused to issue marriage licenses for same-sex couples but because a new religious establishment has finally reshaped the law order on which the United States was founded. The fundamental transformation is religious, not legal.

Law as religion

Every law order reflects the religious foundation in which it is anchored. Law is to be applied impartially, but the very idea that law is to be applied impartially is partial to a particular religious conviction. What is civil law but an imposition of a particular morality in external social life? When we ask why it is illegal to drive an automobile 130 mph in a school zone, or take an iPod from Wal Mart without paying, or strike a rude waiter in the skull with a baseball bat, the answer ultimately necessitates an appeal to religion. Law is a matter not of taste or preference or thoughts but of right and wrong actions in specific social situations. Secular counterclaims that law is based in a morality apart from religion fail spectacularly on close inspection. If murder is evil because “everybody knows it is,” we might wonder how (and why) everybody knows this. If theft is repugnant because it hurts people, we might inquire why hurting people should be considered a bad thing. If rape is wrong because humans should give consent to sexual intercourse, our next question should be where the “should” comes from. The answer is that law is transcendent — it comes not from man but beyond man. It comes from God. When man apostatizes, he does not become irreligious; he perverts his religion in his idolatry, and this perversion soon pervades all of his and society’s life and its institutions.[1]

Law in the United States

The law order in which the United States was anchored is Christianity. This does not mean that the Founding was explicitly Christian. It means that the social order the Founders inherited from colonial North America which in turn was inherited from Great Britain and northern Europe and which the Founders formalized was old Christendom, particularly in its Calvinist and Puritan expressions.[2] While they de-established a national church, they did not de-establish Christian suppositions in their law order.[3] Their dispute with Great Britain was not over the nature of the law but in how that law was applied to their colonies. This Christian law order necessitated a positive law (specific laws) springing from God’s revelation in nature as understood within a broad context of basic biblical beliefs.

The religious transformation

That law order, although as filtered though sinful human minds and hearts was never flawless, did contribute to a distinct Christian social order until the second half of the 19th century, when forces like social Darwinism, higher biblical criticism, secular democracy, and existentialism eroded Christianity as a social force. While few specific major laws changed (like those prohibiting murder, theft and rape; recognizing the integrity of the family and marriage; and protecting religious liberty), the Christian foundation for and assumptions about those laws did gradually evaporate. This means that during the 20th century the superstructure of the law order survived after the religious foundation for that superstructure began to crumble.

The accelerant of this crumbling was the Sexual Revolution of the 1960’s.[4] It enthroned dramatically the radical autonomy of the individual (and not just in sexual matters), and erased the covenantal character of society, what we nowadays call “civil society,” family, church, guild and other non-state associations that competed with the state for citizens’ loyalty and carried their own (non-coercive) “laws” that bound their voluntary members.[5] The Sexual Revolution catalyzed the already existent process of easing those bonds by investing the state with the authority to forbid the authority of these and other long-established associations. The state’s role was to guarantee and protect radical autonomy, especially sexual autonomy, from the non-coercive regulations of civil society.

This was a religious move. Christianity was replaced by humanism, not classical renaissance humanism (which itself was far from Christian), but secular humanism. The early classical humanism saw man — mankind as a whole — as the measure of all things. Secular humanism sees individuals, increasingly hedonistic individuals, as their own measure, their own law, their own reality. The fact that secularism claims to be void of religion is chimerical. It is auto-idolatry, the worship of the individual, no less religious, or idolatrous, than a nude ancient pagan worshiping a crocodile god.

The religious revolution on the SCOTUS

Justice Kennedy, writing for the majority in the landmark Obergefell decision, expressed this religion quite eloquently:

The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.

…. The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation.

Defining one’s identity is essential to spirituality — and protecting this spirituality is a fundamental right of the Constitution. If this is not a religious proposition, I do not know what is. Nor was it merely one protected religion among many. Installing the new religion necessitated abandoning the old one — Christianity — which had defined marriage in the nation for almost 240 years.

Political conservative David French of National Review, therefore, was quite correct to refer to Kennedy and the SCOTUS majority as implementing “a new state religion,” defined as “a secular theology of self-actualization.” (Although a minority of justices are conservative Christians, and their votes usually reflect their religion, the religion of the majority is the new secular religion.)  French was also correct earlier when he referred to the Obergefell decision as a “revolution,” and he meant a legal revolution. But this legal revolution is simply the consequence of the religious revolution that he discussed in his earlier piece and that was victorious in the United States decades ago. Davis’ action was not, properly speaking, revolutionary. It was counterrevolutionary. It was the insistence on law and order, the law and order of the lawful Christian order, not some other religious order. The law she enforced was not naked and neutral. It fit into a specific religious worldview.

The fact that many of the same mainstream radicals appealing to the rule of law in opposing Kim Davis had often congratulated opposition to the rule of law and appeal to a higher law — the law of radical human autonomy — in cases of alleged sexual discrimination proves that the issue is not law but religion. Similarly, when lifelong supporters of Martin Luther King Jr.’s civil disobedience mocked Davis’ religious rationale for her disobedience to Obergefell, it is clear that the integrity of law is merely tangential to their argument. Law is not the chief issue; religion is.

Two religions, two law orders

Davis’ incarcerating-inducing (in)action is not inherently controversial. After all, every clerk in every county in every state in the nation would have acted — did act — as she did for 230 years. Not issuing marriage licenses for same-sex couples was axiomatic in all of U.S. history (and all human history). In U.S. history that axiom rested on the self-evident divine truth that marriage is between one man and one woman. No one (not even the unbeliever) would — or could — have thought differently, much less acted differently.

Kim Davis’ action was simply normal Christian living. The notion that one may be a Christian in his “private” life but not allow his Christianity to influence his “public” decisions is a remarkably revisionist and spectacularly abnormal view that no saint in biblical times would — or could — have recognized. A convert to Christianity for about four years, she did what any reasonable Christian would do — allow her Christianity to affect her life. The fact that as a county clerk she issued marriage licenses is secondary. She is a recent Christian acting as any Christian should act.

As any Christian, I should add, within a Christian culture. And this gets to the issue of why Kim Davis sits in jail today. She acted on the presuppositions of a Christian law order within a society that had abandoned that religion and, therefore, its law order. In a Christian law order, issuing a marriage license to same-sex couples is illegal. In a (consistent) secular law order, not issuing a marriage license to same-sex couples is illegal. Law is downstream from religion.

Until the U. S. and other Western nations turn from secular religion to Christianity, we can expect increasing fines and arrests and jailing for this and related offenses — pastors preaching that Jesus Christ is the only way of salvation, churches excluding practicing lesbians from membership, hospitals refusing to perform abortions. The role of courageous and increasingly vital groups like the Alliance Defending Freedom will be to forestall the hostility that the new religious establishment will unleash.

But law is a reflection of religion, and until religion changes — i.e., reverts to Christianity — we can expect legal hostility to Christians acting as Christians would (should) in a Christian law order. Battles for religious liberty are necessary, but not sufficient. Religious liberty itself originated within and is a feature of a Christian law order and makes little sense in any other. We will have Christianity or we will have tyranny.

Kim Davis’ incarceration is merely the spearhead of that tyranny.

[1] This is one of the striking observations of the Reformational tradition launched by theologian and politician Abraham Kuyper and, in particular, legal philosopher Herman Dooyeweerd in the Netherlands in the late 19th and early 20th centuries.
[2] John Eidsmoe, Christianity and the Constitution (Grand Rapids: Baker, 1995), 17–73.
[3]   Joseph H. Brady, Confusion Twice Confounded (South Orange, New Jersey: Seton Hall University Press, 1955).
[4] Mary Eberstadt, Adam and Eve After the Pill (San Francisco: Ignatius Press, 2012).
[5] Robert Nisbet, The Quest for Community (San Francisco: Institute for Contemporary Studies [1953], 1990).