Once released from her short stay in her county detention center, throngs of supporters greeted Kentucky County Clerk Kim Davis with an energetic celebration. Davis had been imprisoned for refusing to grant marriage licenses to gay couples, a principled stand her advocates likened to Rosa Parks. Her release, therefore, merited a jubilee. While “The Eye of the Tiger” blasted in the background, Davis took the stage last Tuesday, thanked the audience for their support, and praised God. Supporting Davis were two GOP candidates, Ted Cruz and Mike Huckabee, the latter of whom proclaiming he’d be willing to go to jail in Davis’s stead were the judicial system to take further action. Meanwhile her critics, including many Republicans, took to the airwaves and argued that her private beliefs ought not to dictate her actions as a government employee.
At the center of the debate is the interpretation of one of America’s most cherished, yet contested, founding principles: religious freedom. Davis believes that issuing licenses for same-sex marriages implies the government was forcing her to endorse such unions, which she claims is an infringement on her religious liberty; her opposition states that her appeal to religious freedom is merely an excuse to force her beliefs onto others. This type of debate is far from new to American history—to the contrary, it hints to an ever-present, if often subtle, tension running throughout the nation’s religious and political traditions.
The principle of religious freedom seems so obvious that we sometimes forget that it is more a social construction than an objective reality. That is, “religious freedom” can mean different things to different people. This has always been the case. John Winthrop, the architect of America’s “City on a Hill” founding myth, was only one of the first to craft an idea of religious liberty that predicated a particular form of Protestant dominance. To his fellow Puritan settlers of New England, he explained that there were two types of liberty: “natural liberty,” which allowed full freedom for any belief and action, and “moral liberty,” which only allowed the freedom to practice and believe true religious principles. The former invited anarchy and chaos, while the latter was necessary for social cohesion and communal righteousness. Freedom, to Winthrop, was useful only inasmuch as it enabled correct religion. The mythic image of America being established by pilgrims fleeing oppression and introducing liberty, therefore, masks the reality that contested notions of religious freedom have been with us since the beginning.
Later ideas regarding religious freedom remained deeply paradoxical, even following the supposed separation of Church and State at the nation’s founding. They may not be as blatant as Winthrop’s two liberties, but they often predicate the necessity of validating a particular form of Protestant Christianity over competing cultural values. While federal and state constitutions declared the establishment of particular denominations illegal in the nation’s first few decades, many politicians and citizens alike still believed that religious principles served as the foundation for seemingly secular laws. Five states, for instance, required officeholders to be Protestant; Delaware required its officials to believe in the Trinity. These measures slowly subsided over the decades, but what remained was a strong and consistent thrust to privilege mainstream ideals over marginal groups.
If anything, this impulse became even stronger in the twentieth century, often in the wake of movements for minority rights. The middle of the century was an especially successful period for the Protestant majority; the addition of “Under God” to the national pledge in 1954 and the adoption of “In God We Trust” as a national motto in 1956 were just the two most visible examples. It was no coincidence that these actions took place on the heels of women’s suffrage and at the dawn of the civil rights movement: Whenever threatened from the periphery, the conservative mainstream has always sought to strengthen the core. These attempts to reaffirm a particular image of Christian America are always born of anxiety.
To claim that America is a “Christian Nation” implies a package of assumptions and is, on its own, a political statement that transforms the nation into a religion itself. Citizens, then, are more than just inhabitants of the nation’s geographic space or participants in its political body, but congregants in a civic denomination. Understanding America as a religious rather than a political body adds moral significance to secular laws and civic participation. For Kim Davis, signing marriage licenses as a county clerk is framed not as merely a civil duty but also a spiritual ritual. The Obergefell decision was not merely an extension of secular marital rights, but also a challenge to America’s religious soul.
THE CLAIM AGAINST Davis was that her choice as county clerk not to issue marriage licenses violated the constitutional right to marry. Even if individuals can seek licenses nearby, courts have reaffirmed that constitutional rights must be available in every county. Davis specifically objects to issuing certificates to same-sex couples that feature her name as a signatory because, according to her stay application, she believes that the mere presence of her name would equate to a personal endorsement. If the Kentucky marriage licenses “remove[d] the multiple references to Davis’s name,” which would “remove the personal nature of the authorization,” Davis claims she would agree to issue the licenses and certificates. Since returning to work this week, she has allowed her staff to sign these documents in her stead.
The federal district court rejected Davis’s argument on the grounds that she did not prove sufficient burden on her religious beliefs. “Davis is simply being asked to signify that couples meet the legal requirements to marry,” the judge declared. “The State is not asking her to condone same-sex unions on moral or religious grounds, nor is it restricting her from engaging in a variety of religious activities.” Davis could still remain faithful to her Apostolic Christian beliefs, the judge insisted, while also fulfilling her role as an elected civil servant. Her appeal for accommodation, then, was not sufficient to justify withdrawing from what is now considered a civil right.
Ironically, Davis’s case hinges on the interpretation of the federal Civil Rights Act. The 1972 amendments to Title VII of that document dictated that private and public employers have a duty to provide religious exemptions for employees as long as the accomodation is not an “undue hardship” for the employer. When challenged, the United States Equal Employment Opportunity Commission (EEOC) has fought to secure these rights in cases ranging from nurses who wished not to participate in abortion procedures to Jehovah’s Witness employees who did not want to raise their company’s national flag. Because most of these rulings depend on deciding the “hardship” such an exemption would place on the employer, especially the practicality of the accommodation, decisions are based on narrow specifics and particular circumstances, which make it nearly impossible to equate one exemption with another.
Things are more complex with federal employees. While the Free Exercise Clause prohibits the government from discriminating based on one’s religion, the government is not constitutionally bound to provide religious exemptions from generally applicable rules. Indeed, Title VII specifically excludes elected officials from its accommodations. Yet Kentucky is one of 20 states that passed a Religious Freedom Restoration Act (RFRA) that extends exemption rights to government employees and elected officials. The RFRA is arguably more lenient for the claimant than Title VII, as the burden for not providing accommodation requires proving that such measures would introduce tangible harm to a “compelling government interest”; this is a much more onerous standard than merely demonstrating “undue hardship.” Before now, no court has tried the limits of a state RFRA regarding elected officials, and Kentucky’s own RFRA, passed only a few years ago, has yet to be tested at all.
RFRAs are a poignant reminder of the contested notion of religious liberty. The original RFRA was a federal law passed unanimously in the U.S. House and almost unanimously in the Senate in 1993. The bill, proposed by Democratic lawmakers and signed by a Democratic president, “ensure[d] that interests in religious freedom are protected,” and was mostly envisioned for religious minorities like Native Americans, Amish, and Sikhs. It was passed in the wake of a 1990 Supreme Court decision that ruled against two Native Americans who claimed their sacramental use of peyote was protected by the First Amendment. In his majority opinion for the case, eerily echoing John Winthrop, Antonin Scalia declared that a system that promoted too much religious freedom would be “courting anarchy.” The national outcry against the decision led to legislative action. The federal RFRA, then, introduced a mechanism that protected religious rights by introducing a higher standard for ruling in favor of the government’s “compelling interests.”
Yet the act was immediately transformed and spun into new directions. First, it was determined in 1997 that the federal act did not apply to state governments, leaving to individual states the power and impetus to pass their own RFRAs. And then, in response to the growth of movements seen as threatening to religious conservatism, state RFRAs were no longer seen as mechanisms to preserve minority rights, but as tools to protect mainstream religious groups, corporations, and individuals. The most recent versions of the act passed in Indiana and Arkansas, for instance, were deliberate counteractions against the legalization of same-sex marriage.
Kim Davis’s appeal is just the latest example of conservative Christians acting from an anxiety that they are losing control of America’s values. As what was previously the periphery gains more central ground, and as what was previously the core becomes more marginalized, proponents of a bygone Christian nation seek new tools to reaffirm what has been lost. The goal, therefore, is to reform—or, to use language made apt by the RFRA, restore—the true American religion.
One of the dangers of seeing America as a “Christian Nation” is that it infuses religious meaning into every political action. Conservative appeals to religious freedom, then, are often not so much born of a desire for everyone to believe and practice what they wish, because that form of liberty would threaten America’s righteousness and moral foundation; rather, they reaffirm an unspoken assumption that religious freedom is meant to guarantee the perpetuation of true religious belief and practice in the face of threatening opposition, whether secular or heretic. In other words, the appeals aim to perpetuate the myth of Christian America.
Benjamin E. Park is a postdoctoral fellow at the University of Missouri’s Kinder Institute on Constitutional Democracy. Follow him @BenjaminEPark.