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Fishing For Kim Davis

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Who will offer a contrarian defense of Kim Davis? Why, Mr. Stanley Fish, of course:

Obviously, these two decisions (and there are many more on either side of the divide) offer different templates for determining how to think about Kim Davis: from the perspective of Smith, Judge Bunning got it right; from the perspective of Sherbert, the state should find a way to accommodate Davis’s deeply held beliefs and not exact as the price for adhering to them her employment and her physical freedom. (She has now been released, but after having been jailed for six days.)

I believe that Oregon v. Smith was in fact correctly decided, and the incoherent argument Fish uses to advocate a free exercise standard that would be completely unworkable in practice is an excellent illustration of why, but let’s leave this aside. Even on its own terms, this argument is rather feeble question-begging that is highly misleading about the legal doctrines he’s discussing. First of all, Adell Sherbert was asking for access to a state benefit, not asking for a right to be paid without doing her job. Second, and more importantly, Sherbert was not a public official with a responsibility to treat citizens impartially. Sherbert was not interfering with the rights of others; Davis is. And, finally, it is in fact far from obvious that Sherbert would mean that “the state should find a way to accommodate Davis’s deeply held beliefs.” Even if we grant arguendo that being required to issue marriage licenses impartially constitutes a substantial burden on Davis’s religious freedom, Sherbert nonetheless allows such burdens if a policy is narrowly tailored to a compelling state interest.

Given Davis’s actions, I think it is entirely obvious that Bunning’s order is consistent with not only Smith but Sherbert. It is arguable that Sherbert requires that Davis not personally have to issue marriage licenses if citizens can still obtain them from her office with no more than a de minimis burden. Had Davis simply allowed her clerks to issue licenses, of course, she would never have spent a day and jail and the question would be moot. But Davis explicitly refused — and refuses — such a compromise, interfering with the ability of other clerks in the office to carry out the law. If any application of Sherbert suggests that Davis has the right to do this, Fish doesn’t cite it.

A central problem with Fish’s argument is that he overstates the difference between Sherbert, as actually applied, and Employment Division v. Smith. The vast majority of state burdens on conduct that potentially conflicts with religious conviction were undisturbed while Sherbert (which, technically, Smith didn’t overrule) was still the reigning standard. Fish, needless to say, is maddeningly slippery about what he thinks the implications of his much broader reading of Sherbert would imply. Rather than address such questions, he uses his familiar tactic of banalities about the marginal cases in which drawing line between private and public spheres is difficult. These banalities are not particularly interesting in any case, and also not relevant to this case, which isn’t a marginal case — Davis is a public official.

Does Fish, for example, think that U.S. v. Lee was wrongly decided and anyone citing a religious objection should be exempt from taxation? If one takes his defense of Davis seriously, it’s hard to avoid this implication. As always, Fish’s argument is either uninteresting and doesn’t actually tell us anything useful about the Davis case (sometimes there are marginal cases in which balancing the free exercise of religion and state regulations of conduct is difficult!) or is transparently wrong and unworkable (neutral state regulation should generally yield to private individual conviction.) As Terry Eagleton has observed, pretty much all of Fish’s arguments proceed like this.

The reasons for Fish’s defense of Davis will not surprise anyone familiar with Fish’s body of work:

Years ago Justice Potter Stewart famously said that the refusal to permit religious exercises in the public schools should be understood “not as the realization of state neutrality,” but as “the establishment of a religion of secularism” (dissent in School District of Abington v. Schempp, 1963). What Stewart sees (but doesn’t quite say) is that neutrality is secularism. A state that declares itself neutral toward religion — will not pronounce on it one way or the other — is a state that has taken religion off the political table and effectively neutered it while pretending to be indifferent to it. “We won’t say yes or no to religion” means that we will operate independently of its perspective; it means, in effect, that we say no to it. It is in the end impossible for the secular state to be fair to religion, not only because fairness is not what religion demands — it demand precedence — but because fairness is a secular value whose invocation always marks the marginalization and downgrading of religious interests in favor of the interests the state has identified as primary. Just ask Kim Davis.

Some decades ago, Fish had an unoriginal and not particularly interesting idea — the liberal state exercises power and makes policy choices — that he considers to be a profound insight, and has been reiterating it ever since. The state is indeed exercising power against Kim Davis based on substantive principles. But so what? The fact that there is never impartiality all the way down doesn’t make the norm that state officials apply the law impartially any less valuable. Does Fish think that public officials should routinely be able to interpose their religious beliefs between citizens and their legal rights and privileges? Presumably not, but if he doesn’t it’s not clear what he is arguing.

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