Prior to, roughly, the turn towards prioritizing individual conscience in modern Protestantism, no Christian would have thought their personal religious convictions had greater authority than the authority of the church or the state. Somebody like Kim Davis, the Kentucky county clerk, might have chafed at the political hierarchy or struggled internally with Christian teaching, but she would never have thought she could take a run at it, protected by her deeply held religious beliefs. Or if she did take a run at it, there would have been severe, probably lethal consequences. Just think of Jan Hus or William Tynsdale.
Philosophers like Charles Taylor argue convincingly that one of the greatest shifts in the modern era (what he calls the secular age) is a shift away from the communitarian sense that whatever we believe is what we believe together, and instead the development of a social imaginary where diversity of religious commitments, right down to the conscience of the individual believer, can take precedence and stand over against the beliefs or commitments of a wider community.
Taylor's specific argument, which he has been taken up in much of his recent philosophical work, is that a communitarian understanding of and commitment to institutions needs to take precedence over the "liberal" self. The sources of the self are more social than many recognize, and so whatever the secular age is in relationship to religion, it is more complex than simply an example of the decline of religion. It is instead a shift to conditions where religion and secular co-exist in a shared secular space.
And the reason you can blame Lutherans in particular for the bowdlerized version of the "liberal" position is our famous meme:
Here I stand, I can do no other.
Luther said it, I believe it, that settles it.
Or at least that seems to be how the meme has been received--often, I might add, to buttress theological positions quite at odds with Luther's own. In this sense, and much to their surprise, many conservatives are the most liberal people you will meet.
Of course Luther's position was more subtle than this. Luther wasn't interested in deifying his own conscience. Instead, he believed his conscience was bound to something higher, the Word of God, interpreted in light of Christian tradition. His hermeneutic, in this sense, although prioritizing the individual conscience standing under the tradition and Scripture, still had a new component to it, even if not as radically individualistic as it has now been taken by many Protestants ever since.
What we have in contemporary American Christianity is something like the deification of individual religious conscience, writ large. It is a personal acceptance of Jesus as savior that saves, not Jesus himself. It is deeply held religious convictions that decide what one should do as a county clerk, or teach in the schools, rather than the wider communal sensibilities of a secular democracy.
So, we have at least two items of major religious import entangled in this current conversation about religious freedom.
1) Which (or whose) particular religious freedoms are protected in a nation committed to the free exercise of religion?
2) How do we go about constructing our notions of what counts as religious freedom?
Clearly, not every deeply held religious conviction is protected by our laws. I might, for example, believe for deeply held religious reasons that I should issue marriage certificates to cult leaders so they can marry multiple spouses. But I wouldn't find any legal protections for this religious practice. In other words, what you believe internally is still your own, but you aren't allowed, even in a nation that protects religious liberties, from acting on every single one of your religious convictions.
Instead, there is kind of a ranking system at work, and this ranking system plays a role in how religious freedoms are expressed, and whether they are protected. There are criterion for the free exercise, rather than, as we see in Kim Davis, an emphasis on the bald assertion and re-assertion of the religious belief, because what she believes, internally, is clearly to her more important than absolutely everything else in the world, even the position of the Supreme Court of the United States of America, or the hope of her fellow Kentuckians to marry in her county.
In a democracy, by and large, the free exercise of religion is protected until it impinges on the rights and beliefs of others. At that point, once your deeply held religious convictions have some kind of impact on your neighbor, then your convictions have to be weighed against the rights and needs of the neighbor.
So, in the case of Kim Davis, although she might believe two men should not be married on religious grounds, and she is free to believe that and hold to that conviction, once she operates on that conviction in her position as an elected official, she has now forced her religious views on two men (or women) who have a right to the license they seek. Her free exercise of deeply held religious convictions curtails their free exercise of their religious convictions (even if in fact they are not religious, because in a secular democracy, the free exercise of secularity is itself a protected religious perspective).
In which case, and this is the point of the no establishment clause, her own religious convictions have to give way to theirs, precisely because if her religious convictions were allowed to hold sway in her position as a county clerk, that would amount to the establishment of religion, something our constitution aims to prohibit.
So what should she do? Well, she has some options. One option is the one she is taking--to play the martyr, accept the fines, take the penalties, break the law. If she does this, she is in good company. She's in the company of all those over the centuries who have engaged in civil disobedience. But if she takes this position, she'll need to work through and convince all of us who are Christian with her that her civil disobedience doesn't run afoul of other parts of our sacred scriptures. She might could do a bit more reflection, because the same Christian faith she claims prohibits her issuing marriage licenses also fairly clearly condemns civil disobedience.
Rom. 13.1 Let every person be subject to the governing authorities; for there is no authority except from God, and those authorities that exist have been instituted by God. 2 Therefore whoever resists authority resists what God has appointed, and those who resist will incur judgment. 3 For rulers are not a terror to good conduct, but to bad. Do you wish to have no fear of the authority? Then do what is good, and you will receive its approval; 4 for it is God’s servant for your good. But if you do what is wrong, you should be afraid, for the authority does not bear the sword in vain! It is the servant of God to execute wrath on the wrongdoer. 5 Therefore one must be subject, not only because of wrath but also because of conscience. 6 For the same reason you also pay taxes, for the authorities are God’s servants, busy with this very thing. 7 Pay to all what is due them—taxes to whom taxes are due, revenue to whom revenue is due, respect to whom respect is due, honor to whom honor is due.
What is fascinating in the case of Kim Davis is this: over and over again, it isn't about the illegitimacy of the government or the law, but rather about her deeply held religious convictions. I think she makes the argument this way for two reasons. The first one is practical: she herself is the governing authority, so to claim illegitimacy is to illegimatize herself. But more importantly, I think she doesn't make the case this way because she has deified her religious conscience itself. Her conscience is the sole guide and criterion, period.
The problem with this kind of thinking is rather obvious. Once you have decided God is on your side, and your conscience is the only test of what God wants, then essentially your conscience is God.
Quickly, then, one is on the way to internally a martyr complex. I am sure many people already believe that Kim Davis is not unlike the Messiah they worship, who in Isaiah 50 speaks this way:
6 I gave my back to those who struck me,
and my cheeks to those who pulled out the beard;
I did not hide my face
from insult and spitting.
Is. 50.7 The Lord GOD helps me;
therefore I have not been disgraced;
therefore I have set my face like flint,
and I know that I shall not be put to shame;
8 he who vindicates me is near.
Who will contend with me?
Let us stand up together.
Who are my adversaries?
Let them confront me.
9 It is the Lord GOD who helps me;
who will declare me guilty?
All of them will wear out like a garment;
the moth will eat them up.
It is also fascinating, from my perspective, that this county clerk, who is an Apostolic Christian--that is, a fundamentalist Protestant and Biblical literalist, is resisting the direct mandate of the Supreme Court, a court made up of six Roman Catholics and three Jews.
It is important, completely apart from this specific case, for all of us to chart this territory of religious freedoms carefully as we move forward. There are a number of attending dangers. If we allow individual consciences to have free reign, we will have, in the end, a kind of anarchy. Imagine if every county clerk in the country started deciding to exercise or not exercise their legal obligations depending on their individual religious commitments!
On the other hand, in an increasingly pluralist context, we are going to need some guidelines on how to honor the conscience of our neighbors. My own faith community, the ELCA, has made a commitment to recognizing the "bound conscience" of others a hallmark of how we walk together in faith. We have said we are committed to this. It is much more difficult to practice it.
Essentially, recognizing the bound conscience of the other is a selfless kind of neighbor love completely different from the assertion of our own bound conscience. The latter results in the kind of thing Kim Davis is up to. Sheer exercise of her power couched in religious terms.
Honoring the conscience of others means entering into their way of thinking sufficiently to understand it, if possible, from the inside out. Then it means coming to the table and working out ways to move forward together, adopting communal ways of living together as one people, one nation, while remaining made up of very diverse people, and often contradictory religious perspectives. Nobody said communicative rationality would be easy. But the only alternative is the deification of each individual religious conscience, which is in the end both a strange kind of Nietzschean will to power, and idolatry.