Chancellor Livingston administers the Oath of Office to Washington.

Stephen L. Carter is intelligent enough to recognize that County Clerk Kim Davis’s stand cannot simply be dismissed by saying that “she ought to do her job.” Kim Davis is, in fact, doing her job when she disobeys Justice Roberts.

I’m reluctant to disagree with my Bloomberg View colleague Noah Feldman, but after a bit of reflection and research, I’ve concluded that he got things slightly wrong in his recent column about Kim Davis. Davis, the Kentucky county clerk who was held in contempt for defying a federal judge’s order to issue marriage licenses to same-sex couples, has argued that her religious freedom is being violated. What caught Feldman’s attention was her claim that her oath of office, which ends with “so help me God,” entitles her to invoke a higher law when necessary. Feldman thinks she’s mistaken. I wish she were; I fear she’s not. …

[When the 18th century theologian William] Paley takes up the subject of the oath of allegiance to the monarch — an oath also taken in the name of God, and a closer approximation to an oath of office. That oath, Paley argues, does not apply when the king’s own misbehavior “makes resistance beneficial to the community” or when the commands of the sovereign “are unauthorized by law.”

For Paley, as for many others of the day, the oath of allegiance was never a promise to obey all laws. It was a promise to obey the just ones. …

This is the sense of oath-taking that Davis is invoking: that in the case of a conflict between God’s law and man’s, the oath itself requires her obedience to the higher.

Davis’s argument for relying on her oath of office as justification for disregarding the law of the land is well grounded in history.

It’s also dangerous.

In earlier times, recusants like Margaret Clitherow (1586) might be pressed to death in England.

Bookworm argues, quite correctly, that what has happened to Kim Davis demonstrates that Justice Kennedy’s Obergefel decision results in the establishment of the secularist equivalent of England’s Test Act, which barred Roman Catholics and other religious non-conformists from holding public office. Today’s established church, of course, is the Church of Secular Statist Egalitarianism.

Going back in time a few hundred years, one of the primary things that drove British people to America’s shores — beginning in 1620 — was religious discrimination. A significant feature of this discrimination came into being in the late 17th century with various laws aimed at preventing anyone who was not a member of the Church of England from holding public office (civil or military) or working in a university or college. To get those jobs, one had to take an oath [affirming conformity to the beliefs of the church of England]. …

In other words, no non-conformists, Catholics, Jews… or practitioners of any other non-C of E religions need apply. It was against this backdrop that the Founders, more than twenty years before England slowly started reforming its religious restrictions, enacted the First Amendment to the Constitution, the very first clause of which definitively rejects a religious test for public employment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…

Today, though, thanks again to Judge Kennedy’s fatuous romanticism and magical constitutional thinking, we are seeing the federal government reject the First Amendment and revert to the Test Act mentality. Davis and others similarly situated are being forced into the equivalent of an oath. …

I warned years ago that, if the gay marriage crowd got its way, we would see the end of the First Amendment and I issued this warning because I foresaw what is happening here: Because gay marriage is antithetical to mainstream traditional faith it can be forced on Americans only if the federal government requires people to abandon their faith — something directly contrary to the promise of the Bill of Rights.

Kim Davis may not be a pretty Hollywood star or an even prettier San Francisco mayor, and her own approach to traditional monogamous heterosexual marriage may be spotty, but she has proven herself to be a true member of the civil disobedience club, one who is willing to go to jail to defend her civil right to practice her religion freely without the United States government forcing her to abandon core doctrinal beliefs as a condition for employment.

Lots of conservative legal experts, including Antonin Scalia, Jon Adler, and Jacob Sullum have come forward to argue that Kim Davis should either do her job and issue same-sex marriage licenses or resign, Douglas Wilson produced an exceptionally eloquent rebuttal.

A consensus appears to be developing among otherwise reasonable people that Kim Davis, of Rowan County fame, either needs to start issuing marriage licenses or quit her job.

For those just joining us, a county clerk in Kentucky is refusing to issue marriage licenses against her conscience and is also refusing to resign. Her name, which should be on a bronze plaque on the side of the courthouse, is Kim Davis. A federal judge has ordered her to appear in his courtroom Thursday to explain why Davis should not be held in contempt of court for refusing to issue marriage licenses.

But there is a difference between contempt of court and seeing that the courts have become contemptible. …

[Rod Dreher (9/1) wrote of Kim Davis’s stand: In the future, there will surely be hills worth dying on, so to speak, as Christians. This is not one of them.]

I want to begin by making an observation about that hill-to-die-on thing, but then move on to discuss the foundational principle that is at stake here. After that, I want to point out what it would look like if more government officials had the same understanding that Kim Davis is currently displaying — despite being opposed by all the intoleristas and also despite being abandoned by numerous Christians who admire her moxie but who don’t understand her moxie.

First, whenever we get to that elusive and ever-receding “hill to die on,” we will discover, upon our arrival there, that it only looked like a hill to die on from a distance. Up close, when the possible dying is also up close, it kind of looks like every other hill. All of a sudden it looks like a hill to stay alive on, covered over with topsoil that looks suspiciously like common ground.

So it turns out that surrendering hills is not the best way to train for defending the most important ones. Retreat is habit-forming. …

The point here is not just private conscience. The right to liberty of conscience is at play with florists, bakers, and so on. But Kim Davis is not just keeping herself from sinning, she is preventing Rowan County from sinning. That is part of her job.

Every Christian elected official should be determining, within the scope of their duties, which lines they will not allow the state to cross. When they come to that line, they should refuse to cross it because “this is against the law of God.” They should do this as part of their official responsibilities. This is part of their job. It is one of the things they swear to do when they take office.

This is nothing less than Calvin’s doctrine of the lesser magistrates (Institutes 4.20.22-32), which I would urge upon all and sundry as relevant reading material. And as Calvin points out, after Daniel — a Babylonian official — disobeyed the king’s impious edict, he denied that he had wronged the king in any way (Dan. 6:22-23).

Read the whole thing.