First the Kentucky clerk; now the Oregon judge?

From the Associated Press, this news from the state in which I’ve resided since 1991:

Marion County Judge Vance Day is being investigated by a judicial fitness commission in part over his refusal to perform same-sex marriages on religious grounds, a spokesman for the judge said.

When a federal court ruling in May 2014 made same-sex marriage legal in Oregon, Day instructed his staff to refer same-sex couples looking to marry to other judges, spokesman Patrick Korten said Friday.

Last fall, he decided to stop performing weddings altogether, aside from one in March that had long been scheduled, Korten said.

“He made a decision nearly a year ago to stop doing weddings altogether, and the principal factor that he weighed was the pressure that one would face to perform a same-sex wedding, which he had a conflict with his religious beliefs,” Korten said.

There are several unknowns here, including the “in part” part. It’s not known yet what other allegations against Judge Day are being investigated, although the article states that the “issue of same-sex weddings is ‘the weightiest’ of several allegations against Day that are being investigated by the Commission on Judicial Fitness and Disability…” (Keep in mind that Oregon is the same state whose labor commissioner fined the owners of a small bakery $135,000 for refusing to make a wedding cake for a lesbian couple.)

What is most interesting to me is that Day (who is former chairman of the Oregon GOP but was appointed in 2011 by then-Gov. John Kitzhaber, who is a Democrat) has sought to remove himself from the fray by refusing to perform any and all marriages. Put another way, Day seems to have tried to avoid the culture wars, but in vain. This attempt is in keeping, it appears, with the thinking of those who have argued that Kim Davis, the county clerk in Kentucky who has refused to issue marriage licenses to homosexual couples, should have simply had others handle the licenses, or even resigned.

On the surface, it sounds reasonable enough. But we are not living in reasonable times (as Fr. Schall reminds us). And the Reign of Gay is, in fact, the very essence of unreasonable “thinking”; the Reign of Gay will not allow for any appeal to conscience, or even attempts to somehow have a position of neutrality. You are either for or against. You either bow at the altar of gay or are banished into darkness. Period. Ever since I began using the term “Reign of Gay,” I’ve had some readers claim it is meanspirited, over the top, or even bigoted. To which I say: get a clue. It’s going to get worse.

And that means, very simply, that heads are going to roll. NRO’s David French writes of the jailing of Davis:

Some people will call this ruling a triumph for the rule of law, a matter of harsh but necessary justice. It is no such thing. As I wrote in a piece earlier this week, the rule of law requires both lawful enactment and lawful enforcement. Justice Kennedy’s opinion in Obergefell v. Hodges is nothing more and nothing less than the establishment of Justice Kennedy’s world view as a new state religion — a religion with teeth.  …

In my initial piece about Davis, I described the unfolding drama as a case of competing revolutions — with Kim Davis defying Justice Kennedy’s revolutionary act with a revolutionary act of her own. We knew from the beginning which revolutionary held more power, and we also know that the worst revolutionaries show no mercy to dissenters. There were many options short of imprisonment for Davis (how many leftist legislators are in jail for lawless “sanctuary city” policies that actually cost lives?), but the court was apparently in no mood for moderation. So off she goes to prison. Judge Bunning’s decision is a means of control It is a means of maintaining order. It is the selective application of law to advance a particular radical ideology. But spare me any talk of justice.

Quite right. This is about raw power. I do think that there are interesting and decent arguments to made for Davis taking a different approach, but those don’t change the reality of how her decision—based on conscience, religious belief, natural law, and a few other things—was addressed so harshly. And as French argues in another fine piece, if Davis had simply resigned (as even some conservatives have said she should), it “would have represented an unacceptable surrender. Indeed, from the perspective of the ideologues, it would have provided them with a complete victory — with the twin benefit of changing the law and cleansing public service of the devout. Resignations hand over the lever of power to the truly lawless, to those who will engineer social change by any means necessary.”

R.R. Reno, editor of First Things, has written one of the best pieces so far about the Davis situation:

One angle for the casuist: When the Supreme Court issued its decree, American civil law ceased to define marriage and instead became a law of civil unions, with the word “marriage” now having no real meaning. With that sort of reasoning, I might be able to wiggle my way toward signing licenses that say “marriage” but really mean “civil union.”

Whatever we might think of the moral or legal substance of the matter, however, we cannot claim Davis has misunderstood her situation. One of her duties as county clerk now asks Davis to do what her conscience tells her she must not do. The way forward is clear: She must obey her conscience. She must act, as she puts it, “under God’s authority.” That’s exactly right.

Many modern people have the wrong impression that conscience is active, impelling us to do things contrary to the law. This is not the tenor of Davis’ stance in Morehead, Kentucky. She is not issuing counter-opinions to refute Obergefell. Nor is she campaigning to get other county clerks to join her. There have been no press releases, no assertive shrill spirit of protest on her part. That’s the progressive mentality, which tries to upgrade its political ambitions with appeals to conscience. Instead, Davis simply won’t do what her conscience tells her she cannot do. She’s not acting contrary to the law; She’s not acting at all.

Dr. Edward Peters also praises Reno’s essay, but offers one point of correction:

I wish the Supreme Court had only enshrined same-sex civil unions in law; such a ruling we might have lived with. But that is not what the Court did. Instead five justices imposed on marriage (true marriage, natural marriage, traditional marriage, whatever pleonastic phrase one wishes to use) the lie that marriage includes the union of two persons of the same sex. This judicially imposed lie is not a ‘little white lie’ that might allow one to hide a surprise birthday party, it is not a ‘public figure lie’ (half of which aren’t true in the first place), and it is not even a ‘planted lie’ designed to deceive military enemies or dangerous criminals. Instead, the Court has published a naked, gross falsehood that tears simultaneously at the fabric of law, language, family, and society.

The word marriage has, and will always have, an objectively true meaning—no matter how many times it has been degraded by sinful societies (usually by its legal institutions but more lately by its mass media) and by many recalcitrant individuals (including some religious leaders). Justice Kennedy’s atrocious prose in Obergefell can no more deprive marriage of its meaning than, say, Barney’s insipid theme song (“I love you, you love me, we’re a happy family”) can deprive family of its meaning. Instead, Kennedy the Judge and Barney the Dinosaur teach something seriously false about marriage and family. But while Barney’s lyrics simply make one queasy, Kennedy’s words are now the pretext to throw people who do not accept his lie into jail.

I’m still rather stunned, frankly, at how utterly banal and bereft of any logic (legal or otherwise) was Kennedy’s declarations in Obergefell. But it is completely in keeping with the sort of misty, moronic metaphysics that has long dominated American culture, as I wrote the day after the SCOTUS decision: 

 It is a sort of metaphysics, but without any cohesive understanding of first things or vision of the transcendent order, something like an arrogant man awkwardly holding a hammer and saw and claiming to be “a carpenter,” but with little or no idea how to build—or even why to build.

And when you give a hammer and a saw to a man who is supremely confident that he knows how to build, but does not actually possess such knowledge, the results are either embarrassing or destructive, or both. They can also be very serious, as Kim Davis knows, as Judge Day is finding out, and as so many Americans have yet to realize.