In the October newsletter of the Catholic League its president, Bill Donohue compares what Kim Davis did to the Nazi resistance. I am equally appalled as a Jew and as a gay man. Although he is divorced, Donohue is a fanatical Catholic apologist. He writes:

An obvious example where the positive law violates the natural law occurred in Nazi Germany. Under Hitler, Nazis were obliged to murder Jews; the positive law demanded that they do so. After the war, at the Nuremberg trials, some high-ranking Nazis were put on trial. Their defense attorneys argued, quite rightly, that they were just following orders. But it was their contention that they should not therefore be prosecuted that proved debatable. This position was rejected by the courts: it was held that they knew that what they did was morally wrong.

Today we have another showdown between the positive law and the natural law. Enter Kim Davis. This Kentucky county clerk invoked her Christian-held beliefs as the basis of refusing to issue marriage licenses to gay couples. Was it fair to arrest her? Yes. Did they have to put her in jail? No. Was she right to refuse? Yes. I hasten to add that had she taken this job after the high court ruled on this issue, I would not defend her (to take a job one cannot in conscience do is indefensible). However, that was not the case: When she was elected to this post, gay marriage was illegal and those who elected her were opposed to it. The court changed, not her or her backers.

Donohue follows a long line of Christians who refuse to analyze the underlying facts. “Christian held beliefs” should be subject to critique. Yet Donohue claims that Davis has a right to refuse without explaining why. There are many things that Donohue fails to explain.

  1. How does Davis’ name pre-printed on forms – issued by others – connote her approval of same sex marriage and form a religious objection?
  2. (I think that the matter stops at question one but suppose her objection is reasonable); How is her objection balanced against her obligations as a government official?
  3. How are Davis’ free exercise rights, as a government official, balanced against the constitutional right of gay people to marry?
  4. How does the imposition of religious beliefs on a government bureau not violate the Establishment Clause of the First Amendment?

Donohue does not address these issues. Donohue avoids answering question three, regarding the constitutional rights of gay citizens, with this unoriginal sophistry:

Nowhere in the Constitution do the words marriage, family, or sexual orientation appear. It has generally been understood that when rights are not mentioned in the Constitution, it is up to the states to rule on them, not the federal government. In his dissent, Chief Justice John Roberts wrote that the right of two men to marry was a “right imagined by the majority,” one that is not “actually spelled out in the Constitution.”

“Not in the Constitution” or “not the original intent” would void many landmark decisions including Brown v. Board or Education (integration of public schools), Loving v. Virginia (eliminating bans on interracial marriage) and Gideon v. Wainwright (constitutional right to counsel). None of these rights are mentioned in the Constitution. Bill alleges a Tenth Amendment (states’ rights) conflict. However, in these three landmark rulings (I could list many more) the Supreme Court instructs what is permissible by, or required of, our states.

Quoting dissenters is futile. They express the losing arguments; those that failed to persuade the majority. The bottom line to all of this hyperbole is that the issue is settled. Gays have the constitutional right to marry. Neither Bill Donohue nor Kim Davis have a say. Unless or until a constitutional amendment changes the outcome of Obergefell v. Hodges, that is the law of the land.

This is not Bill’s hobby. In 2013 Donohue was paid $475 thousand. That’s out of line for a $3 million operation with declining contributions and only a handful of employees. His excess compensation is a debatable issue. The comparison of Davis to a Nazi resister should not be debatable. It is inexcusable.

By David Cary Hart

Retired CEO. Formerly a W.E. Deming-trained quality-management consultant. Now just a cranky Jewish queer. Gay cis. He/Him/His.