You might remember Judge Ken Starr from the Clinton impeachment proceedings. You might also think Ken Starr is somebody who would support Kim Davis. After all, even the Pope himself has been said to support Kim Davis in her law-breaking activities, although the Vatican now denies that the Pope supports Davis’ particular case or that he was even aware of the details. But you would be mistaken. The current President of the private Baptist Baylor University has a different take altogether.
As reported by Right Wing Watch, in the closing statement at a “Religious Freedom Summit” at the Catholic University of America’s Columbus School of Law in Washington, D.C. on September 18 – the Friday before Pope Francis’ visit – Starr said of the Kim Davis case,
“I don’t think that this question is easy. Others may, and the freedom of conscience simply trumps all. But the reason I think it’s not easy is because she is a public official who has taken an oath to uphold the law. I know, I heard the panel saying, look at all the exceptions to individuals who’ve been sworn to uphold the law and who have chosen not to do it. I personally find that a little uncomfortable. Oh, you’re going to pick and choose which laws to enforce.”
Starr asked the audience how they felt about a sheriff or police chief deciding which laws to enforce. This is absolutely a can of worms no law-abiding society should want to open. Where would it end? What if EMTs or doctors or nurses can decide whether or not to save your life depending on some personal characteristic they find objectionable? Or as Starr asked, a policeman, or how about a fireman? Can a clerk at the DMV also refuse to issue you a drivers license?
You can bet if this were about hunting permits or firearms, the right would be howling for Davis’ head. But it’s not: it’s about same-sex couples wanting to get married.
And here, Starr’s outlook for florists and bakers, the cause célèbre of the Indiana Republicans and their Religious Freedom Restoration Act, who might also want to refuse gay customers, was no more optimistic:
“She is one who has opened her bakery or catering service or floral shop to business. She has a license from the state to do business. And in carrying out a commercial business, the general rule is one akin to principle two of nondiscrimination. That rule is deeply anchored in the common law. You’ve got to serve people who come in to you. And also the public accommodation provisions of the 1964 Civil Rights Act when folks were excluded from service on grounds of race. The very idea and ideal of the common law rule is equality — you take care of every customer who comes to you unless you have a very substantial — they’re trying to tear up my shop.”
Starr admitted to what Republicans generally won’t: that “we are an increasingly diverse community of men, women and children who come from so many cultures and traditions …The world we inhabit is a pluralistic one.”
Imagine that. The world Thomas Jefferson saw over two centuries ago has come to fruition, a world where, as Jefferson said, “our civil rights have no dependence on our religious opinions,” and our “fellow Americans” include “the Gentile, the Christian and Mahometan, the Hindoo and infidel of every denomination.”
You have to be willfully blind not to see it. Unfortunately, this is the GOP we’re talking about, and a Papacy that, however progressive this pope is in many areas, is still conservative at heart.
On September 24, in an op-ed in USA Today, Starr again pointed to the importance of religious freedom as the Founding Fathers’ “first freedom” and asked if the Pope will “call us to revive the American belief in the first freedom?” But here Starr has it wrong. The Church is not, and has never been, about religious freedom for all, and if one is looking to the Pope for religious freedom, one is looking in the wrong place, as the Pope’s embrace of Kim Davis demonstrates.
I’ve used this quote before, and it is still and always relevant (emphasis added):
The choice of the way of intolerance by the authorities of Church and empire in the late fourth century has had some very serious and lasting consequences. The last vestiges of its practical effects, in the form of the imposition of at least petty and vexatious disabilities on forms of religion not approved by the local ecclesiastical establishment, lasted in some European countries well into my lifetime. And theoretical approval of this sort of intolerance has often long outlasted the power to apply it in practice. After all, as late as 1945 many approved Roman Catholic theologians in England, and the Roman authorities, objected to a statement on religious freedom very close to Vatican II’s declaration on that subject. In general, I do not think that any Christian body has ever abandoned the power to persecute and repress while it actually had it. The acceptance of religious tolerance and freedom as good in themselves has normally been the belated, though sometimes sincere and whole-hearted, recognition and acceptance of a fait accompli. This long persistence of Theodosian intolerance in practice and its still longer persistence in theory has certainly been a cause, though not the only cause, of that unique phenomenon of our time, the decline not only of Christianity but all forms of religious belief and the growth of a totally irreligious and unspiritual materialism.
In other words, if we want religious freedom – true religious freedom – we can’t wait for the Church to give it to us. We have to take it, and make the religious authorities recognize that we aren’t going to give it up.
To the extent conservatives will insist on looking into the past, while they will hurt others, they will not do so without hurting the cause they claim to espouse. America’s millennials, by turning away from organized religion, have demonstrated the continuing truth of this.
A synopsis of the summit can be found here.
Update: A previous version of this article incorrectly stated that the Pope supported Kim Davis whereas the Vatican has issued a denial, putting it at odds with the account released by Davis’ attorney, Mat Staver.
 A.H. Armstrong, “The Way and the Ways: Religious Tolerance and Intolerance in the Fourth Century A.D.” Vigiliae Christianae 38 (1984), 1-2.