Donna Brazile

Donna Brazile

Our Founding Fathers thought freedom of religion was so important they put it at the top of the Bill of Rights. As a proud Catholic woman, I know I’m glad those protections are there. But the freedom of religion does not trump any other right.

I take no joy from Rowan County Clerk Kim Davis spending time in the Carter County jail for being personally opposed to the Constitutional right of all citizens, without exception, to marry. Nor do I think it’s appropriate that some commentators have mocked her appearance or her marital history. This is little more than salacious and petty gossip.

But what’s clear is that what Davis is doing, in the name of her faith, is not “civil disobedience” in the tradition of Henry David Thoreau, Mahatma Gandhi and Dr. Martin Luther King Jr.

It is not civil disobedience when a public official, charged with executing and upholding the laws, violates a law of the land rather than resign the office. Rather, what Davis is doing recalls those 1950s and ‘60s southern governors, like Orval Faubus and George Wallace, who willfully defied the Supreme Court, federal civil rights laws and the enforcement orders of Presidents Eisenhower, Kennedy and Johnson.

Her lawyers told the court that “Davis understood (and understands) this oath to mean that, in upholding the federal and state constitutions and laws, she would not act in contradiction to the moral law of God.”

That’s a neat legalistic twist that has no foundation in law, the Constitution or in our history. Davis signed up to perform a secular role – she knew when she took her oath as clerk that she was to serve every citizen equally.

If Davis can claim an exception to her oath, why couldn’t a strict Seventh Day Adventist or a Jain refuse to issue hunting licenses? Why couldn’t a strictly observant Jew or Muslim in a similar role refuse to issue a business license to a restaurant or butcher that sells pork?

The Supreme Court found clearly and unequivocally that there is a constitutional right to marriage. As a government employee tasked with issuing marriage licenses, Davis took an oath, sealed by invoking God’s name. As she herself put it on election night, “I will follow the statutes of this office to the letter.”

When it comes to the law, this issue couldn’t be more straightforward.

Even when the judge gave her an opportunity to have her deputies issue the licenses, she declined. It seems to me that she may be manipulated by her ideological lawyers and by office-hungry politicians, eager to turn a resolvable issue into a “winners and losers” matter, for political or campaign advantage.

While she was in custody, marriage licenses were issued in Rowan County to same-sex couples without Davis’ signature. An essential accommodation has been made to her religious freedom without overthrowing our entire legal system.

At the end of the day, what strikes me as deeply moving was observing how the sanctity of marriage is something so profoundly important to same-gender couples – to their dignity – that they were willing to fight for it, day after day.

Davis can’t see that right now, but I do think that she, like so many others in this country – politicians and citizens alike – will eventually evolve on this issue. That’s what so many others have done, including the President Barack Obama, former Secretary of State Hillary Clinton and former Vice President Dick Cheney. It’s accommodating the differences among people – and finding a way to work together as a nation – that makes this country so great. It certainly wasn’t made great by turning people away.

Donna Brazile is a senior Democratic strategist, a political commentator and contributor to CNN and ABC News, and a contributing columnist to Ms. Magazine and O, the Oprah Magazine.


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