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Why civil disobedience is irrelevant to gay marriage

A same-sex couple say their vows during a Jewish ceremony. For use with RNS-GAY-MARRIAGE, transmitted on November 19, 2013, Photo courtesy Jacqui DePas Photography.
A same-sex couple say their vows during a Jewish ceremony. For use with RNS-GAY-MARRIAGE, transmitted on November 19, 2013, Photo courtesy Jacqui DePas Photography.

A same-sex couple say their vows during a Jewish ceremony. Photo courtesy Jacqui DePas Photography.

Despite threats from conservative Christian dissenters, civil disobedience will turn out to be irrelevant as a response to gay marriage.

To understand why, we have to think seriously about what civil disobedience really is.

I said this in my last column: “If a government mandates what God forbids, or forbids what God mandates, civil disobedience may be required…In the first case civil disobedience involves the refusal to do what government commands, and in the second case it involves the continued practice of an act that government has banned.”

Could this apply to the new legalization of gay marriage nationwide?

The federal government has not mandated that churches or ministers perform gay marriages. Nor has it forbade churches and ministers from performing such nuptials. Government has permitted gay marriages –and thus the solemnization of these marriages by whoever is authorized to offer it.

Therefore, those who wish to perform gay weddings are free to do so, and those who do not wish to perform them are free to not do so. There are no legitimate grounds for civil disobedience here. If the government were one day to mandate that churches or ministers perform gay marriages, this would be grounds for civil disobedience — and a violation of religious liberty. But that is hardly a realistic possibility.

But what about government officials who are now mandated to register or perform civil gay marriages, in violation of their consciences?

In my view, whether or not state officials like a particular law, they are required to submit to it in the performance of their duties — or should resign from office. Government clerks are not church officials. Nor are they simply individual citizens who might find a government’s law to be a violation of conscience. They are on the state payroll. When resignation is an option, refusal to adhere to or enforce the law on the part of a government official is dereliction of duty, not civil disobedience.

After Roe v. Wade, some strongly anti-abortion Christians argued that civil disobedience is permissible or even obligatory where government merely permits what God forbids, such as abortion. Thus some Christians chained themselves to abortion clinic doors and otherwise participated in civil disobedience not because they were mandated to perform abortions, but because others were permitted to do so.

This view was not shared by a large number of Americans and was never accepted by government officials. Eventually the movement ran out of steam, partly because it was so strident.

One could imagine a scenario where government permission of some blatant wrongdoing was sufficient grounds for civil disobedience. It happened all the time during the civil-rights era, when government was allowing blatant racist discrimination.

Few would consider government permission of gay marriage to reach that level of moral seriousness. Public sympathy is far more likely to run to the LGBT community than to those who believe their permission to marry is grounds for civil disobedience.

Take a much more legitimate fear on the part of today’s dissenters — that government will mandate changes in the policies of Christian church, parachurch, social-service, or educational organizations. The most obvious places where this could happen would be related to admissions, hiring, or other policies that discriminate for religious-ethical reasons against married, sexually active, or “out” LGBT persons.

In this case the government would in effect be mandating that Christian institutions accept behaviors, or persons performing behaviors, or persons claiming an identity, that some of these institutions believe that God forbids.

It seems very unlikely that government would simply mandate that Christian organizations change such policies. It might, however, withdraw tax-exempt status, not from churches, but from church-related organizations. Or it might ban federal funds, such as government social-service contracts, research grants, or student loans, from going to such organizations. This is not the same thing as simply banning such organizations from adhering to their preferred policies, but for many organizations it remains a nightmare scenario.

There would be no form of civil disobedience available in such cases. In actuality, their real fight would be within the legal and political system, and it is in fact already happening. If these organizations stick to their policies, and if government moves in the direction I have just indicated (which is by no means a certainty), no organizational leader will be arrested or imprisoned. No organization will be raided and padlocked. No civil disobedience strategy will be relevant. Instead, such organizations essentially will be quarantined off from government dollars, with predictably scary bottom-line and reputational effects.

If these policies are sufficiently important to these organizations, they may well need to prepare for the day when they will have to function without continued access to tax-exempt status or government dollars.

Of course, they do have other options. They could change the relevant policies, perhaps under protest, while claiming no change in their values. They could do this because they decide that their organizational mission is too important to let it die on the hill of LGBT policies.

Or, of course, they could take this as an opportunity to dig deeper and actually reconsider their beliefs about LGBT people and their relationships, as some of us have already done.

In short: the nationalization of legal gay marriage does not seem to present civil disobedience possibilities, despite angry rhetoric calling for that today. For dissenters, it’s going to be a different kind of struggle. It will be conducted in public opinion, in government advocacy, in the courts — and maybe in their own hearts and minds.

I welcome you to follow me on Twitter and friend me on Facebook. Civilized comments are always appreciated, here and elsewhere.

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David Gushee


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  • Thanks for a great perspective. I have been troubled by all of this talk of civil disobedience, but couldn’t clearly communicate my position.

  • Very helpful post David. This is a complicated issue, and I understand some of the legitimate concerns that religious organizations have. Sadly, what we’re seeing is rampant fear mongering and un-Christlike “coversations” on the Internet, with all kinds of threats and accusations in concert with absolute panic attacks. More people need to be exposed to a reasonable voice like yours.

  • How does your view apply to the bakers/florists/photographers? They claim that the government is mandating them to participate in same-sex weddings, through business-ending fines if they don’t, plus public opprobrium. They also claim that God forbids them to participate. Yet they are not “Christian organizations” like the ones you list.

  • I echo Garson’s question – What is your position regarding the situation of the Klein family in Oregon? In their case, they are being forced to either participate in something they find wrong and inappropriate or to close their business. Does a person forfeit the right to “free exercise” when they start a business? Or is it legitimate to see the business as an extension of the individual and their beliefs and positions? What if they see the business as a “ministry”?

  • Dr. Gushee…Thanks for keeping the conversation going…I, too, would like to hear your response, please, to Garson’s excellent question above regarding non-Christian organizations like bakers/florists/photographers who claim that “the government is mandating them to participate in same-sex weddings through business-ending fines if they don’t, plus public opprobrium.”

  • This is no time for civility, good doctor, when the armies of the Prince of LIes are upon us.

    Was Christ being civil when he beat up the money-changers and threw them out of the temple? As Christians we are called upon to be on fire with the Holy Spirit, and to set this fallen world ablaze with our faith!

    For He came not in peace, but with a sword! He came to set man against father, and daughter against mother. Jesus was a radical revolutionary, and so must we be in His name!

  • Don’t worry about it, Mr. Gushee. This guy is sodomy and children obsessed, and regularly makes comments like this all the time. RNS pretty much ignores its own commenting guidelines when it comes to him. Not that I have a problem with that, because I believe that this naked display of very Virulent bigotry only does good.

    One thing you will notice is that all of the “good Christians”, who regularly disparage anybody who doesn’t measure up to their very limited view of Christianity, and are perfectly happy to cite Corinthians to disparage gay people, never call him out on the slander and reviling that he regularly and engages in.

    It’s why I don’t take them all that seriously as either Christians are human beings.

  • Well, when you ask a loaded question, don’t be surprised if the answer agrees with you. The clients chose to ignore laws at every level of government, which for bid discrimination on the basis of religious belief, yours or mine. They also chose to ignore laws in Oregon which forbid discrimination on the basis of sexual orientation. Since marriage equality was not the case in Oregon at the time, they were not participating in anything other than making a cake, the same cake they make for everyone else. Claiming that there are exceptions to antidiscrimination laws merely underlines why we have them in the first place.

    It is very telling that the only time these objections ever make their appearance is when a certain class of so-called Christian is required to treat gay people decently, politely, and the same as everyone else. A little research will show you that the Kleins were happy to make cakes for all kinds of things that anybody else would call sinful.

  • I think that when a person sells a service they have to realize that they are going to be serving a huge swath of people that they do not agree with. If ,as a business owner, simply want to serve others like you or agree with you, I do not think that you will be in business very long.
    The Klein family sells a serve, and I disagree with the idea that they are “being forced… to participate” They are providing a service, in this case a selling a wedding cake. They are not participating in anything.
    If they want to practice their faith then they should “do good to those” considered by them to be a enemy of the Gospel. In fact they should have “gone the second mile” so to speak, in making it the best wedding cake ever. That is in the Bible, not discriminating against another person created in the image of God.

  • Thanks for a reasonable voice.

    In regards to the Klien’s bakery — The problem I have with them is that they were willing to take money from this same gay couple 2 years earlier for a wedding cake (used at the marriage of the mother of one of them).

  • Dr. Gushee,

    Thankyou for such a well articulated commentary on the irrelevancy of civil disobedience as a protest against CIVIL same sex marriage. I agree with all of your points. I’m on the other side of this issue, as I’ve been an LGBT activist my entire adult life, since I’m trans and transitioned as a teenage in the early ’70s. I’ve never had call personally to use civil disobedience, only political and moral persuasion. But, on the day I got married in 1999 (remember, I’m legally female in the eyes of California law) my beloved Uncle Jimmy engaged in an act of church disobedience to officiate in his capacity as a Methodist Minister. Thus, many who are called by God to disobey authority are doing so to SUPPORT LGBT marriage. So, I do urge clergy, if so called, to disobey authority when that authority so clearly promotes unkind disparagement of LGBT people.

    Best wishes
    ~Kay Brown

  • These individuals have legal avenues and arguments that they have not pursued. I surmise this is because their legal representatives (such as the Beckett Fund, Alliance Defending Freedom, and Liberty Counsel) have chosen legal strategies that would make “martyrs” out of their clients, rather than winning their cases. For example, Elane Photography stipulated that it was a “public accommodation” under New Mexico law. Without this stipulation, it’s argument – that applying the law to an artist restricted the artist’s freedom of expression – stood a good chance of ewinning, according to legal analysts with no stake in either side of the argument.

    Bakers and florists that offer designs A, B and C to the general public are selling a commodity, and therefore are covered by anti-discrimination laws. But if asked to make a custom design that expresses a message, they could also assert their freedom of expression.

  • Ben, you should post examples regarding the Kleins. I would be genuinely interested to know.

  • Not a bad article, Mr. Gushee. I think you treated the issue of civil disobedience fairly well.

    Nevertheless, I hope you will answer Garson’s good question.

  • Fair point, Ronald, but Gushee is for gay marriage, so you can’t expect him to feel incensed about a ruling he presumably agrees with.

    Gushee is simply thinking through the logic of civil disobedience to see whether it fits here. I had my doubts that it did and Gushee confirmed some of them.

    Look, I’m against the ruling, too, but that doesn’t stop me from appreciating a well-reasoned article when I see one.

  • Good point. The author is naïve if he does not understand that the heavy hand of the state is going to come down hard on Christians. The gay movement and its enforcers will not tolerate any dissent. That’s why even if there are a hundred bakers available to bake for a gay wedding, a lone dissenter will still be identified and shut down. This is decidedly not about access to services. It is about silencing those who disagree. It is a totalitarian, ugly and un-Christian.

  • That is because they had no objection to any of the people themselves but to the act of participating in a gay wedding. Why so many have such difficulty understanding this is baffling

  • This is helpful, though this paragraph also raises another question the courts might have to decide, at least if framed this way:

    “Bakers and florists that offer designs A, B and C to the general public are selling a commodity, and therefore are covered by anti-discrimination laws. But if asked to make a custom design that expresses a message, they could also assert their freedom of expression.”

    Would a request from a gay or lesbian couple be a request for a custom design, or just a request for the same designs everyone else buys? This could get into some tedious, and disingenuous, hair-splitting–if design A regularly included the names of the groom and bride, would a gay couple requesting design A with their names count as customizing?–but I don’t see how it would be avoidable either.

  • No, what is baffling is the idea that providing business services for a wedding celebration *now* counts as “participating” in a religious service.

  • When Denny Burke thinks you get something wrong, that is prima facie evidence you are probably correct.

  • Ronald:

    First, Jesus did not “beat up” the money changers. The Gospel of John is the only one to mention the detail of the whip, and many translations (ASV 1901, NCV, NIV, NRSV) make it clear that it was only the sheep and cattle he chased from the temple with it. There is NO mention of physical violence to anyone.

    Second, when Jesus came to “bring not peace but a sword,” he didn’t mean that Christians should be the one swinging the sword. He did mean that we might sometimes be victims of violence because of our following of him. We might be the ones the sword falls on, in other words. The one time any of his followers did swing a sword, he told him to put it back before he hurt himself (grin), and healed the guy it had been used on.

  • So Ben – are gay bakers required to make a cake for a church event that says “Marriage = 1 Man + 1 Woman”? Does a Jew have to make a cake with swastikas all over it? Does the law apply to everyone the same?

  • Gays interrupting Catholic Masses to protest is not civil disobedience? This article seems to imply that Christians are on the verge of a lawless run on the Supreme Court.
    Christians….true Christians, will accept gay marriage as secular nonsense, like abortion, that cannot rule their life or command them to alter their beliefs. Gay marriage lacks any tradition of acceptance and abortion was criminalized with the fall of the Roman Empire. Out of the blue they have become acts of love. Why should Christians acknowledge these digressions as productive?

  • If all you REALLY want is a cake, go to Walmart. When I was married, my baker, florist, and photographer were all participants in the ceremony. They considered themselves participants, rejoicing with us in our moment. It was very personal for them. I wouldn’t have had it any other way and, frankly, neither would they. They put heart and soul, as well as technical skills, into what they did.

    To say that these folks aren’t participants is absurd … or you really missed out on something special in your wedding.

  • Their prior business with these folks is precisely the point. This clearly wasn’t “We don’t serve your kind here” because they had a long history of serving these folks. Would they prepare a birthday cake? Sure. There’s nothing in the Bible condemning birthdays. In fact, they’re a blessing (Prov 10:27 The fear of the LORD prolongeth days: but the years of the wicked shall be shortened.)

    These businesspeople don’t say they won’t serve those PEOPLE. They say , “I can’t participate in that EVENT.”

    The difference is huge.

  • Nice clouding of the issue. At what point does a stock design become custom? When the client request that the sample names in the example be replaced with their own names?

    Or does it conveniently become a ‘message’ when the cake is identical to the sample, but ordered for a same-sex couple?

    Why should people be exempt from one law because of their religious beliefs, and not other laws?

  • When you are unable to tell the difference between an exclusionary message, and inclusive one, your questions will of course confirm your prejudice.

    Equating same-sex marriage with the Holocaust indicates a lack of moral sense.

  • Todd, your fantasy actually reflects what people who preach ‘homosexuality is sin’ have been doing to GLBTQ people for more than a thousand years – using the heavy hand of governmental disapproval to coerce and punish.

    ” The gay movement and its enforcers will not tolerate any dissent. ”

    In the U.S., nearly the majority of GLBTQ people identify as Christian, and even more of our straight allies do. Your fantasy is based on a false premise, that this a conflict between Christians and GLBTQ people. It is not. It is a conflict between people, some claiming to be Christians, with a bias against GLBTQ people.

  • ” It is about silencing those who disagree. It is a totalitarian, ugly and un-Christian.”

    Well, Mr. McLaughlin, the attorney in California who presented himself as a Christian and sought to make homosexuality punishable by death, certainly attempted to silence those who disagree. And the bans on same-sex marriage were totalitarian, ugly and unchristian. So too was the criminalization of homosexual sex until 2003, the lawfulness of firing people for being gay in much of the U.S., the campaigns that smear GLBTQ people throughout the last 50 years.

    What you fear, Todd, is what your peers have been doing to GLBTQ people. And it is what you would do again if you could, as Mr. McLaughlin demonstrates.

  • “To say that these folks aren’t participants is absurd …”

    So are you a participant in every act done by anyone who buys something from you?

    Of course, you’re anonymous, so there’s no telling how you make your living. But if you sell cars, for example, and someone buys a car from you and uses it to commit a felony – by your reasoning, you are complicit in that felony.

    The more people use this “bakers are participants” line, the closer we get to using it in ways you won’t like.


    The situation is a bit less neutral than folks make it out to be.

    “When Cryer and her mother arrived at Sweet Cakes by Melissa, Aaron Klein ushered them to his office, where he then asked for the names of the bride and groom. ”

    This indicates that Aaron believe Cryer to be heterosexual. So, the prior purchase doesn’t clear the Kleins on the discrimination charge, nothing about that prior order would communicate to them that the purchasers were a lesbian couple and they clearly assumed that Cryer was heterosexual. But when Aaron found out that Cryer was a lesbian, then he discriminated against on that basis.

    It is not about participating in a wedding. It is about learning, through the nature of the event that the cake was for, that Cryer was not heterosexual as previously assumed by the Kleins.