Defiant Kentucky county clerk Kim Davis has appealed the contempt order that has left her languishing in jail. At the same time, her lawyer has argued that marriage licenses issued without her signature are invalid — an interesting question given the state’s requirement that her signature be affixed to every such license. Below is my recent Washington Post column on Davis and how she fits within our collective social and legal iconography. Defiance is a heroic value when it is Martin Luther King violating police orders and standing unbent before biting dogs and swinging batons. It was inspiring to millions when King cited St. Augustine to declare “an unjust law is no law at all”. Such figures stood against not just our prejudice but our laws in their defiance. As Henry David Thoreau stated “Unjust laws exist; shall we be content to obey them, or shall we endeavor to amend them, and obey them until we have succeeded, or shall we transgress them at once?” Those who transgress upon unjust laws today are often heralded as heroes tomorrow from early American patriots to abolitionists to suffragists to desegregationists. Even today many praise Edward Snowdon for his criminal actions in disclosing a massive surveillance system of U.S. citizens even though those same laws are designed to protect our national security. Yet, Davis is using her public office to impose her religious values on neighbors. That contrast led to the column below.
County clerk Kim Davis cut a striking figure this week as she thanked the judge who found her in contempt of court and then was taken into custody. For some, Davis is the face of courage and principle as she refuses to commit what she considers an immoral act of issuing marriage licenses to same-sex couples. For others, she is a religious bigot who is using her public office to force her neighbors to adhere to her own moral values.
It is not surprising that a single act of defiance could provoke such divergent interpretations. From Dred Scott to Brown v. Board of Education to Roe v. Wade to the recent decision in Obergefell v. Hodges, we tend to see our legal values embodied in heroic or demonic figures. So when history passes judgment, will Davis be hero or villain?
There is a material difference between citizens who refuse to yield individual rights against the government and government officials who use their offices to deny rights to citizens. Defiance was heroic when Martin Luther King Jr. declared that “an unjust law is no law at all” and stood unbent before biting dogs and swinging police batons. King, Rosa Parks and Alice Paul could not accept the law without accepting second-class status for themselves.
And yet George Wallace is rightly vilified for defying the federal government and trying to block desegregation in Tuscaloosa. Government officials like Wallace and Davis are not required to accept values as individuals. They are required to follow the law, which is ultimately defined by the Supreme Court in its interpretation of our Constitution.
Davis has said that “[t]o issue a marriage license which conflicts with God’s definition of marriage, with my name affixed to the certificate, would violate my conscience.” While clerks do “sign off” on certificates, that is not a discretionary function. Their signature confirms compliance with the dictates of the law, not personal moral dictates. They cannot deny certificates to those who are legally qualified to receive them.
Davis may have had a principled position in previously declining to issue these licenses while the courts considered the merits of the question. Similarly, clerks who believed that there was a legal basis to issue such licenses based on lower court decisions would claim a principled stand. However, that debate ended the minute the box holding the Obergefell opinions was opened in the Supreme Court clerk’s office on June 26.
The only question that remains is whether clerks like Davis want to continue in office. Davis does not have to be a clerk any more than she would have to be a bus driver or a schoolteacher. If she has a moral conflict with her duties, she has a principled avenue of resolution: She can resign. Just as Wallace had no right to block the schoolhouse, she has no right to block the courthouse.
The great irony about Davis’s iconic status is that her supporters fail to see how her dissent threatens their interests, too. Religious conservatives have some legitimate concerns about the erosion of rights — particularly speech rights — in the face of anti-discrimination laws, as currently being debated in cases involving Christian bakers and wedding photographers. However, Davis is asserting the very authority that the religious community has been dreading.
If one clerk can refuse to comply with laws governing due process, privacy or equal protection, another clerk could do the same with laws related to religious rights. In other words, religious conservatives could find themselves across a counter from someone who refuses to recognize their religious practices or beliefs. When Davis was asked by a gay couple what authority she had to refuse their license, she responded “Under God’s authority.” Would her supporters feel the same way if God meant Allah or Yahweh?
That distinction seems to be missed by protesters such as Flavis McKinney, who told the New York Times that he came to the courthouse this week “to stand up for God and his word, and to stand up for our clerk.” Indeed, McKinney referred to another iconic figure in noting that “[God] delivered Daniel from the lion’s den. So I trust he will deliver her.”
Actually, the story of Daniel is precisely the point. Daniel was a government official who was thrown into the pit with the lions by his master, Darius the Mede, for violating the law (by praying to his God rather than to Darius). It might look like Davis, who was ordered to jail Thursday, is surrounded by critics, with only her faith to protect her. However, Davis is no Daniel.
Daniel did not jump into the den to await divine intervention. Whereas Davis has not only called forth the lions but declined various exits offered by the court, including simply instructing her clerks to issue the licenses. The divine lesson is the same as the legal one: leave the den and the lions behind.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University.
Washington Post – September 3, 2015
Lisa N.,
I confess, I have sinned. I’m a dirty rotten sinner. GOD forgive me, and have mercy on my soul. Hallelujah.
Warspite, One of the most reasoned and intelligent comments I’ve read in a while. Kudos!
Something is not right about this whole situation. Based on having lived in Kentucky, I can affirm the county in question is rural and pretty sparsely populated. One must drive well over an hour roughly NE from Lexington to get to this town. Regardless of whatever it is as the crow flies, we ain’t talkin’ ’bout no Interstate gettin’ there!
It has the look of a “test case” and I’m surprised Turley & others have yet to pick up on this possibility. This woman lives in a friendly county (i.e., she will not have to worry about harassment), and the law in Kentucky is perfect for the situation. Even if not planned as a test, and I think it was at least on a statewide basis, it sure looks like a test case now.
I do not side with the Clerk. If you do not want to enforce state law do not take the job. Then again, the law was different when the Clerk took (or was elected?) the job.
The Free Exercise problem is self-evident. But what North/Easterners, West Coast folks & liberals everywhere miss is the problem under the Establishment Clause. At the very least an Establishment Clause argument has great appeal to religious Protestants.
The Federales adopted a huge social change that seems w/o any support in ANY traditional religions. Whether Judeo-Christian, Muslim, Hindu, Sikh, Buddhist, etc., etc., all prohibit homosexual marriage. So, along comes the Su Ct & Obama Admin & imposes a major change in the tenets of each religion.
Saying, “it has no effect on religious ceremonies” is irrelevant. One could say that about a lot of issues. Has not the Feds instituted a law that potentially bars religious people (or those who actually believe their faith) from taking a wide range of state and federal jobs? And do not just dismiss this out of hand because you do not actually adhere to your faith, or any faith (your privilege in the U.S.).
The prohibition against men marrying men, women marrying women, etc., is not some radical tenet of a radical faith. So how come the Su Ct decision is not an attempt to supersede the religious beliefs of all religions with a new “religion” promulgated by the state? How come this is not the dreaded “slippery slope” experts like Turley are fond of wheeling out?
While I am certainly not stating I support the county clerk, I do not dismiss her position as derived from uneducated rubes living in mobile homes. I see a lot of elitist snobbery in coverage of this story.
This “problem” pops up regularly for libertarians who hold public office all the time.
The question for them becomes, “do I violate my libertarian principles or do I do the job”
The libertarian answer is, don’t take the job if you cannot carry it out.
The simple fact is, that we don’t live in a libertarian legal system, and a libertarian will have to kowtow to the requirements of the job, or not engage in the job.
And that applies to a principled religious person as well.
If your religion prevents you from carrying out the job you voluntarily contracted for, then you must in good faith step down from the job and its inherent obligations.
The Supreme Court long ago ruled that public employees don’t have the discretion to not do parts of the job that might interfere with personal belief systems.
I do not believe that the Supreme Court has the final say on anything but I do agree that a person hired to do a job should do it or be fired.
Jefferson that some good thoughts on the matter of the court:
“To consider the judges as the ultimate arbiters of all constitutional questions (is) a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.” ~Thomas Jefferson
InalienableWrights, you might want to reconsider your opinion about “do your job or be fired” in light of established law.
From Eugene Volokh:
“Under Title VII of the federal Civil Rights Act, both public and private employers have a duty to exempt religious employees from generally applicable work rules, so long as this won’t create an “undue hardship,” meaning more than a modest cost, on the employer. If the employees can be accommodated in a way that would let the job still get done without much burden on the employer, coworkers, and customers — for instance by switching the employee’s assignments with another employee or by otherwise slightly changing the job duties — then the employer must accommodate them.”
“But if Davis sues in state court, seeking a declaration that she can issue licenses and certificates without her name — as a Kentucky RFRA-based exemption from the Kentucky statutory requirements for what must go on her license — I think she’d have a good case.”
“But though I agree that her religious convictions can’t excuse her from issuing marriage licenses altogether, I think the judge erred in the rest of the analysis in this paragraph. If Davis believes that it’s religiously wrong for her to issue licenses with her name on them, ordering her to do that indeed burdens her religious beliefs, enough to trigger the Kentucky RFRA. And giving her the more modest exemption from the include-the-court-clerk’s-name requirement might therefore indeed be required by the Kentucky RFRA.”
“When does your religion legally excuse you from doing part of your job?”
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/09/04/when-does-your-religion-legally-excuse-you-from-doing-part-of-your-job/
Now now Kerry. . . You blast this Davis woman for the exact same thing you are doing, judging! I can tell that you are a democrat because hypocrisy is your thang! lol
Under Prof. Turkey’s rational, the Ss guards at the extermination camps were right to follow their legal orders from superiors.
The crimes against humanity were a later invention by the Nuremberg courts.
Would Prof. Turkey argue that those guards were unjustly punished?
Slippery slope.
All civilizations go through a period of decline before their eventual collapse:
http://www.isegoria.net/2014/07/the-arab-decline/
LOL! EVERYONE knows this woman’s past. You don’t have a scoop here. Good smear job though. Hillary might be able to use you. Got anything on Bernie??
Neither hero nor villain, merely an example of how some human’s brains are unable to process religion without transforming into concrete.
Wonder if Kim would issue same sex divorce papers? Kim has expertise in this area.
She’s been through 3 divorces. And married 4th time again. Maybe 3 former husbands can testify. Who’s driving who nuts? Kim follows an apostolic Christian religion.
In 1984, Davis married store clerk Dwain Wallace, records show. More than a decade later, she divorced and married Joe Davis, her current husband.
The couple’s relationship apparently fizzled out sometime around 2007, when Davis married Thomas McIntyre Jr, a construction worker. When she rejoined Joe Davis, 49, on 24 August 2009,
it was her fourth marriage. The 49-year-old mother of four worked at the clerk’s office for 27 years before winning her seat last November by only 465 votes.
Actually, her top job was making sure the lunch room fridge was cleaned out once a month. With 5 clerks under her, in such a rural county, you know they were way overstaffed. But, she’s a Democrat. And over staffing is their specialty.
Local, state and federal government officials have one thing in common – they all take the same loyalty oath – to uphold the U.S. Constitution and protect the constitutional rights of all persons (including non-citizens) within their jurisdictions.
Martin Luther King, Jr. called out disloyal local and state officials for violating that supreme loyalty oath. Snowden called out federal officials that betrayed that loyalty oath.
The Kentucky clerk also betrayed that loyalty oath as a condition of her employment and authority. As part of her job authorities, she has to follow the U.S. Constitution as interpreted by the U.S. Supreme Court – that is her top job duty while at work.
Davis swore an oath to perform her duties and those duties were apparently consistent with her right of conscience. The scope of those duties have now changed in that they put her in the position that would require her to violate her conscience. If she can no longer honor her oath of office then she should resign or be removed from office. We do not have enough jails to house every public official in this country that refuses to honor their oath of office and I think jailing her while leaving the far more egregious violations unchecked would be something her attorney should exploit.
The separation of church and state was to keep state out of church, not the church out of the state. This is the most inappropriately quoted founding principles.
Well said, doglover.
She’s neither a hero nor a villain. She’s confused about the proper role of religion and also about the proper conduct of her job.
LOL! The liberal meme that people who disagree w/ them “are stupid” has surfaced on the second comment here.
Was George Wallace arrested and put in jail with no bail when he stood in front of the University of Alabama to defy a federal segregation law to keep two black students from going to that school?
Hillary Clinton has broken federal laws and we hear crickets.
I’m sick to death of the hypocrisy of the democratic agenda, to arrest one with no bail and do nothing to the other one and both breaking federal laws.
The American people are sick of the pick and choose indignities of their choice on the left.
Davis’s thinking that same-sex marriage is wrong has nothing to do with religion or morality. It is simply her inability to accept changes in cultural conditions as people become better educated and more aware of reality. Intellectual weakness is not the same as religion although they often coincide.
There’s another interesting analysis of this case from Eugene Volokh:
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/09/04/when-does-your-religion-legally-excuse-you-from-doing-part-of-your-job/
Volokh thinks the solution is for Davis to argue fur an accommodation from the state, removing the requirement for her name to appear on the licence. She’d need to obtain a court order from the Kentucky courts under their RFRA.
If that’s true, and she successfully obtains such an order, I think everybody could end up happy. But that’s neglecting the political dimension, which at this stage seems to be inauspicious for a reasonable outcome.