In “A Question For Conservatives About Religious Liberty and Unjust Wars”, a recent post at The Mitrailleuse blog, author J. Arthur Bloom questions whether conservatives who have rallied around Kim Davis would likewise rally around a Romanian Catholic infantryman commanded by his Bishop, on the eve of the invasion of Iraq, to refuse orders to participate in the mission.

It’s not a mere thought experiment as Bloom utilizes the 2003 Lenten pastoral missive of Eastern Catholic Bishop John Michael Botean in which Botean rails against the Iraq War and, indeed, commanded those in his Eparchy to refuse direct service in what he determined was an unjust war. Believing that many of Kim Davis’ defenders would not extend similar support to the Romanian infantryman, Bloom wonders what precisely defenders of religious liberty would say to this soldier: “Should he quit? Should he be allowed to sit this one out? Should he be jailed for insubordination? Why, or why not?”

While the question of whether a warfighter should listen to his bishop counseling, presumably selective, conscientious objection has important real-world ramifications, any response to Bloom’s particular inquiry has to begin by noting the distance between the infantryman’s quandary and the situation regarding Kim Davis. Beyond both being issues of religious conscience, the two are only remotely analogous.

First, one has to ask how the respective players in each scenario are analogous. Obviously, Kim Davis and the infantryman are the moral actors in question. Davis’ refusal to process marriage licenses is then presumed to be mirrored in the infantryman’s refusal to follow invasion orders. In the Davis case, the authoritative source of her conscientious stance is what has, until only recently, been the undisputed position of the Christian tradition. In the case of the infantryman, the authoritative source of his act of conscience is the judgment of his Bishop who specifically cites the Christian tradition as the grounds for his judgment. This hints to the particular characteristics of the dilemma in each case and further demonstrates the disparity.

Kim Davis, in being asked to facilitate same-sex marriages, was confronted with something that is specifically and consistently opposed in the orthodox Christian theological tradition. Thus, for the infantryman’s predicament to be truly analogous, he would have to have been ordered to do something else the tradition has long deemed specifically immoral – such as willfully murdering innocent civilians. In the Roman Catholic theological tradition of just war, which Bishop Botean cites as his authoritative lens, war is not, unlike both homosexual activity and the intentional murder of the innocent, considered malum in se, or morally evil in-and-of-itself. For Davis, there is no room for prudential judgment regarding the morality of homosexual marriage, the matter is already decided; there are no homosexual unions that are, after prudential deliberations, declared just. For our infantryman, the complex issue of whether a given war in question is just or unjust is precisely a matter of prudential judgment – that’s the point of the just war tradition as a casuistic, or case-based, moral framework.

But here it gets further complicated. The prudential deliberation of whether a given war is or is not just is not, strictly speaking, a matter for the infantryman to determine. Nor is it for his Bishop to decide. The just war tradition, classically understood, locates the responsibility for such judgment in the proper authority of the Sovereign ruler above whom there is no higher earthly authority charged for the care of the public good. This does not mean that warfighters turn their conscience off and blindly follow the lead of the State. It does mean that they exercise humility in recognizing that they likely do not have access to all the information informing their Sovereign’s determined judgment. In most cases, the only thing for the common warfighter to do is to fight the war justly. It can, of course, happen in particular cases that the matter is clear and that a particular conflict is in the eyes of the common warfighter morally wrong. In such an event, the infantryman must obey his own conscience.

This is not, however, the scenario Bloom describes. In his scenario a Bishop forbids the infantryman to enter the fight. In doing so, the infantryman might well become a Kim Davis but instead of going against the authority of the State he might stand against the authority of his Bishop. He would have grounds for doing so as, in this case, Bishop Botean has overstepped his own grounds. His insistence that the infantryman’s soul is in peril is, to the best of my knowledge, unprecedented in the build up to Iraq. Pope John Paul II did not, despite his clear opposition to the war, ever suggest participation in it to be a matter of mortal sin. While the Bishop has as much right as any to enter the public realm and debate his view, and I admit a greater responsibility – especially for his flock – to do so than most – he is in his unrelentingly polemical posture in danger of not entering the public sphere but of trespassing into it. By not acknowledging any of the then ongoing debate, in not, himself, putting forward any argument but, rather, simply gesturing toward while completely ignoring the tradition, his bullying polemic has no value in public discourse.

But let’s assume that Bloom’s infantryman does, in fact, listen to his Bishop. Let’s further assume that he refuses service not simply in obedience to the competing authority of his Bishop over the State but that he genuinely believes participation in the invasion is morally wrong, a violation of his own conscience. Bloom suspects that many of Davis’ defenders would then not likewise defend the infantryman’s conscientious refusal to deploy. Perhaps, but it’s unclear of course which of Kim Davis’ defenders Bloom has in mind and the various options make a difference in any comparison. Among those who count themselves her supporters there is a significant range of positions. Some insist she shouldn’t have been punished because, after citing one or another complex legal argument, they doubt whether she broke any law at all while others arrive at the same conclusion by saying she lawfully refused to obey an unjust law. Others don’t deny she broke laws and should have been punished not by jail time but rather by being impeached. Others agree she should have been tossed in jail and is, nevertheless, a hero. Still others say she should have resigned after discovering she could no longer uphold the laws she swore to uphold while yet more others say she should not have resigned because the laws she swore to uphold were shifted under her and her refusal to either follow orders or resign forced the setting-in-motion of many necessary things. Because others have commented ably and at length on Kim Davis – among the more valuable are Joe CarterRyan AndersonEugene VolokhRussell Moore, and, at the risk of flattering my boss, IRD’s own Mark Tooley – I cannot add anything of further substance.

But, in part because my wife will give me grief for tucking-tail and dodging-the-issue, let me say that my (somewhat tentative) judgment is that Kim Davis was right to refuse to uphold laws that were changed mid-game and against her conscience, should not have resigned, and was therefore required to suffer whatever consequences came of her refusals. This is not unrelated to my response to Bloom’s question about the soldier.

If Bloom’s infantryman did in fact refuse to obey orders and participate in the invasion of Iraq he has a legal apparatus in place to allow him to freely do so. He is not, of course, free to avoid the consequences. Nor would his refusal be groundbreaking. While the refusal to obey orders in the combat zone rightly has far more serious punitive consequences, many servicemen and –women have refused to deploy to Iraq on the grounds of either conscientious objection – which is objection to all wars – or on account of a more nuanced objection against Iraq as a particular war. While conscientious objection status can lead to an honorable discharge, those who simply refuse service in particular wars seem to more often face possibilities of court-martial, dishonorable or other-than-honorable discharge, and even jail time. I have no real problem with either of these outcomes. One can change their views and, even while in uniform, convert to pacifism. When the circumstances allow they should be given accommodation. But selective conscientious objection is, indeed, asking too much. While one can, indeed must, disobey unlawful orders, military leaders need the assurance of knowing lawful orders will be generally followed. While in disputed cases one might hope to sway those judging the case, as one might hope that Davis’ disobedience led to a change of judicial hearts and then of law, or at least of accommodation, the fact that judges might not be so swayed means that it is both expected, and reasonable, that one faces whatever consequences the courts deem appropriate. So it is with our infantryman.

While my primary counsel to the infantryman would be to get himself a new Bishop it might be that he agrees with his Bishop. In that case, he is free to suffer whatever consequences are judged appropriate. But that seems, at the end of the day, a small thing compared to the price of not following one’s conscience.