Hungary & Kentucky: Christian Identity & Conscience

On their face, the situations of Viktor Orban and Kim Davis have little in common. The refugee crisis in Europe and the issuing of marriage licenses in Kentucky involve different issues, different countries, different people. But, the stances of both the prime minister of Hungary and the county clerk in Kentucky raise profound issues of Christian identity, conscience and witness.

Prime Minister Orban ordered his government to erect a razor-wire fence along its border to help keep migrants fleeing Syria and other Mideast hotspots out of Europe. His government tried to trick the refugees on to trains that were not destined to bring them to safety, but to internment camps. In the neighboring Czech Republic, someone had the bright idea to give the refugees I.D. numbers and write the numbers on their forearms. These tactics triggered historical memories that are still keen in Europe, and should be.

Orban justified his hostility to the refugees because he said he wanted to “keep Europe Christian” and was defending the “Christian identity” of Europe. Identity means sameness, and the sameness Orban desires is as ethnic as it is religious Certainly, Christian identity has less to do with one’s ethnicity than it does with one’s beliefs and the conduct that flows from those beliefs. It was certainly not lost on Pope Francis that the way to preserve the Christian identity of Europe was to behave in a Christian manner and welcome the refugees. He called on every parish in Europe to take in a refuge family. The scenes of welcome in Catholic-heavy Bavaria were not only heart-warming, they were evangelizing.

In his first visit outside Rome, the pope went to Lampedusa, another point of entry to Europe for refugees and migrants. He called the world to evidence a “reawakened conscience” about the plight of immigrants. He condemned the “globalization of indifference,” as he preached from a pulpit made from the wood of a boat that had capsized. Conscience, as I never tire of pointing out, is not self-justification of our beliefs, whatever those beliefs are, but the voice of God in our hearts. For Pope Francis, if we listen to our conscience, we will extend welcome to the stranger because the same God who speaks in to our conscience spoke to  Moses, saying, “Welcome the stranger for you too were a stranger in the land of Egypt.”

Kim Davis, the county clerk in Kentucky who is currently sitting in jail on contempt of court charges, has invoked her Christian conscience to justify her refusal to sign marriage licenses after the Supreme Court legalized same-sex marriage in June. Unlike identity, which means sameness, no two consciences are precisely the same, a point made beautifully by Judge John Noonan in his 2009 Laetare Address at the University of Notre Dame. And, the rights of conscience are part of the timber in Anglo-American jurisprudence, even if they were, from the very beginning, twisted and turned in horrifying ways. (You, dear Catholic reader, were not included in the Act of Toleration.) The rights of conscience are not absolute, to be sure, but they are not mere impediments to social agendas either.

In the Washington Post, UCLA law professor Eugene Volokh, has a very thoughtful article, detailing how the U.S. government typically deals with situations in which a person has a conscientious objection to undertaking a given task at work. He cites a number of instances in which, under the requirements of Title VII of the Civil Rights Act, a work-around or accommodation is found that, for example, allows a Jewish person not to work on Saturday or a Muslim not to serve alcohol. Title VII sets up a balancing act: An employer does not have to move heaven and earth to accommodate an employee’s religious requirements, but they should try to do so. No one, not the employer or the employee, should be unduly burdened. Contested cases end up at the Equal Employment Opportunity Commission.

As Volokh notes, Title VII does not apply to civil servants like Ms. Davis. And, it seems to me from the transcript, that the judge offered her a reasonable accommodation: Permitting the assistant clerks to sign the marriage licenses. She declined that accommodation. I confess I lost some of my sympathy for Ms. Davis when she refused what seemed to be a workable accommodation, but she gained it back about a minute later when the judge ordered her to jail. Jail? Is that how we should deal with these cases? Can’t the judge order an interim remedy, while the Kentucky legislature finds a more permanent solution? After all, while Ms. Davis sits in jail, her assistants are now issuing the licenses at the heart of the controversy. Couldn’t the judge order they do so with her at home? I understand that Ms. Davis is unwittingly exemplifying the thing she claims to dread, the government impeding conscience rights. She is a government official impeding other people’s consciences. But, that does not mean the government should punish her with jail.

Unfortunately, when situations like Ms. Davis’ arise, most people jettison their principles and side with their team. Principles are invoked only when they support a previously arrived at ideological position, and ignored when they do not. Certainly, those who complain that Ms. Davis is refusing to enforce the law of the land and should be thrown in jail were applauding President Obama when he declined to enforce DOMA, which was also the law of the land. And, those rushing to defend Ms. Davis similarly chastised Obama for his refusal to enforce DOMA.

Part of the problem in the U.S. is that our constitutional framework was erected by Deists for whom God created the world but then left it alone. There are no more Deists. We all believe in one kind of interfering God or another today. Certainly, we Catholics are the least Deistic people in the world. The centrality of our belief in the Incarnation – we bow at the Et incarnatus est when we recite the creed each Sunday – has led us to engage the world, in all its messiness, not to flee it. This is our pride, dare I say a key part of our identity. There are limits. My mother, rest her soul, surely looked at Jesus and His Mother and saw two Irish Catholics. Prime Minister Orban of Hungary has collapsed Christian identity into hoary ethnic and historical categories. Poland has long called itself a “Christ of nations.” Identity cannot be reduced to loyalty, and a Christian should be loyal to the Christ of all nations (and above all history) even while she is loyal to the particular cultural incarnation of her place and time.  

In a pluralistic society, issues of conscience and governance are going to clash all the time. The Hungarian prime minister clearly fears a pluralistic country, but we Americans claim to relish it. That means we should be very careful about treading on the consciences of others. We should be, in the best sense of the word, neighborly. Work-arounds, exemptions, accommodations, "+Levada solutions," these are all consequences of living as engaged Christians in a pluralistic society. We can avoid them by living in non-pluralistic societies or by withdrawing from cultural engagement. They testify to our belief in the Incarnation, even while some shun them as compromises unworthy of those who enter into them. I think they are a mark of a civilized society. Pope Francis has called us all to a reawakening of conscience, but not all consciences will awaken in the same way. Making allowances for each other is the real tradition of liberalism, not the slut-shaming or the hillbilly sneers thrown at Ms. Davis the past few days. It is also the real tradition of the Church, not the culture warrior bombast that sees every hill as a hill upon which we must die to save the culture. This morning, I am more sympathetic to Ms. Davis than I thought I would be before reading Volokh’s article, and more of a fan of Angela Merkel than I ever thought possible. It is my hope that more people will look at what these two episodes tell us about the real challenges the Church faces, and the often pedestrian, messy, compromised way we humans are called to walk through the vale of tears.