Balkinization: Stanley Fish’s Defense of Kim Davis

Stanley Fish’s Defense of Kim Davis

Nelson Tebbe

Richard Schragger, Micah Schwartzman, and Nelson Tebbe

Stanley Fish has written a defense of Kim Davis, see here and here, and it is worth parsing his arguments, because they have become staples of both left and right critiques of the secular state for some time now. Fish argues that rights-based liberalism is not “neutral” but is an exercise of power. In particular, the public/private distinction—which makes Davis’s “private” exercise of religion irrelevant to her “public” exercise of her duties—is a creature of law and the forceful imposition of a worldview that many do not share. Davis (and many other religionists) do not believe in a clean division between public and private. To impose such a division on her and others is to impose upon them a construction of the world that is as much a religious establishment as is any official church. Liberalism is a “religion” just like any other; it just happens to be the state religion.

Davis is a good test for these kinds of arguments, which take aim at the supposed pretensions of liberalism to neutrality among religions and between religion and irreligion. (Whether liberalism does so is asserted, usually without support.) One could reject the public/private distinction. Davis could then exercise her official duties as she would exercise her private duties to God; these would be one and the same, and where they conflict, Davis would apply God’s law (as she sees it). Public officials who assert that they are servants of God can take this position.

Fish, however, isn’t willing to jettison the public/private distinction altogether. Critics of the secular state can argue vociferously against the distinction, but when push comes to shove the alternative isn’t very attractive. That’s because rejecting the public/private line would be countenancing an actual establishment of religion. Davis can reject gay applicants for marriage as inconsistent with God’s law according to this argument; but she can also enforce God’s laws in every other way. If we accept that Davis is compelled by God, then her religious exercise is burdened if she signs the marriage license, if she happens to be in the room when the marriage license is issued, if she sees LGBT people walking down the street, or even if she happens to know that the state of which she is a member countenances gay marriage. Her claims of complicity with violating the tenets of God’s law are totalizing.

If we accept Davis’s claims then we’ve replaced one establishment with another. And so Fish ultimately ends up playing the same game that he argues so forcefully against: finding a place to draw the line between public and private. For Fish, it seems, that line should be drawn at accommodating Davis’s religious objections by giving her an opt-out from signing marriage licenses. But what’s the reason for giving Davis an opt-out without also allowing her to create an establishment of her own? Why stop at an exemption? After excoriating the state for choosing where the line should be drawn, Fish draws his own: where it is relatively easy for the state to accommodate religious people (including religious government officials) it should. But why? Because it is fair or good or just? Fish doesn’t give us a reason—perhaps an exemption is required because the exercise of state power should always be resisted. Or perhaps giving an exemption keeps the peace. But notice how far we’ve come: from a deep critique of liberalism’s power grab, to a much more manageable dispute about the contours of religious exemptions.

Now that we are playing the same game, we have to decide when an accommodation is relatively easy—and that is a question of balancing. Having public officials excuse themselves from public duties when gays and lesbians show up at the counter looks pretty costly, even if those people can get marriage licenses elsewhere. It would be hard to conceive of the equivalent for race or religion—say if Davis’s God compelled her not to give licenses to interracial or interfaith couples. We have fought very hard to reject the kind of caste society that results from allowing public officials to form one line for some kinds of people and another line for others based on objectionable characteristics.

Moreover, there is the anarchy objection. We can’t just give Davis an accommodation here; we also have to give any government official, government employee, and every private citizen accommodations for their deeply held religious convictions. Justice Scalia found this possibility so disturbing that he rejected it out of hand in Employment Division v. Smith. It is why the line of cases coming out of Sherbert v. Verner—which Fish seems to endorse—never amounted to much in the way of accommodations.

In truth, accommodating religious people doesn’t solve Fish’s problem. For some people with deep religious convictions (and perhaps Davis is an example), an accommodation is not really sufficient. It is only by the grace of the state that an exemption is granted, and the state only governs by the grace of God. The Supreme Court’s decision legalizing same-sex marriage in Obergefell is a sin against God; it is illegitimate, and the state that tries to enforce it is illegitimate, too. The answer for some believers is to avoid complicity with the state altogether by exiting into their own insular communities, not by receiving selective exemptions from the state.

The public/private distinction enables this form of exit, so it should be celebrated, not denigrated. Fish should be careful about what he wishes for—as much as religious citizens are now vulnerable to state mandates, they would be even more so if they did not have rights protected by what we call religious liberty. Nothing Fish says undermines liberalism, in other words. Fish thinks “religious liberty” is an invention of the liberal state. He (and others) also think that the liberal state oppresses religious people. He is right about the first; he is wrong about the second.

[This post was edited on 9/22/15 -- minor changes were made to the description of Fish's argument.]

Posted 12:29 PM by Nelson Tebbe [link]