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
hskiprob,
“If you are not willing to carry out your job, then you are unfit to do so. That is not the Governments or other Citizens problem.”
It is under Title VII; especially if the government added a predicate after the employee took the job.
My apologies if the law doesn’t follow your gut feeling.
Isaac,
When you’re ready to grapple the issue like an adult you’ll find this analysis by Eugene Volokh quite helpful:
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/09/04/when-does-your-religion-legally-excuse-you-from-doing-part-of-your-job/
David
You can try to link this self empowering functionary’s actions to the Constitution all you want but it just doesn’t stick. Her actions are those of an anarchist using a personal druther to thwart the law. We used to put those types in jail. She is no different than any other religious fanatic. She justifies doing harm to others through her peculiar interpretation of some convoluted fantasy, one that is so convoluted and contradictory that like Islam it has put itself against itself for centuries. We live in a country of laws made by man, not bed time stories made by man. For the countries living under bedtime stories just read the newspaper on a daily basis. If you want that there are flights leaving for the East daily.
issac wrote: “You can try to link this self empowering functionary’s actions to the Constitution all you want but it just doesn’t stick.”
Of course it sticks. The Constitution’s First Amendment prohibits government from forcing someone to express as righteous a behavior that they view as unrighteous. This violates free speech as well as the free exercise clause. The Constitution’s Tenth Amendment prohibits the federal government from exercising powers not granted to it by the Constitution. Marriage has always been regulated by the States, and the Supreme court in Windsor used that argument to claim DOMA was unconstitutional because the federal government had overextended its powers and attempted to regulate marriage according to federal rules. Now they want to claim that they the court have the power to make law about marriage and that it is not unconstitutional for them to do it because they are the highest arbiters of law? Hogwash. We have a lawless court with unjust judges. They have lost their way and become irrational.
Until the State of the Kentucky removes the requirement for the Clerk of the Court to authorize marriages, then that public office now has a religious test, which also is contrary to the Constitution, namely, Article VI. Any member of a Christian religion whose conscience carries the conviction of the Bible that says homosexuality is an abomination can no longer serve as clerk of the court. Members of Christian religions in such a category need not apply. Clearly, such is unconstitutional.
You either have to believe in our Constitution about religious freedom and free speech or not believe it and throw the Constitution away. Claiming that you think Kim Davis should resign means that you do not believe in religious freedom or our Constitution.
David wrote:
“Of course it sticks. The Constitution’s First Amendment prohibits government from forcing someone to express as righteous a behavior that they view as unrighteous.”
What? I see no such wording of that nature. You are making this stuff up just as your religion does. Prove that homosexuality is an abomination to God. The Bible is logical not the word of God so you’ll need some other source. You cannot fit all the known land animals, insects, retiles, etc, on any boat. Hell, it’s taken us a few hundred years to even find most of them. You are making a ridiculous assault on the rule of law.
If you are not willing to carry out your job, then you are unfit to do so. That is not the Governments or other Citizens problem. Either do you job or face the consequences. I would have fired her the minute she refused to do her job.
Davidm2575 said …
Last time I checked, the acknowledgment of God was a Constitutional right…
Yes it is, and I do it, too, … but it is not a right to use your particular brand of reverence in public office performance. I’ve said repeatedly that such a “right” would be a slippery slope…there are many different “religions” and religious practices and I’d prefer none in government because it opens the proverbial door to the abominable.
I give up.
When does your religion legally excuse you from doing part of your job?
By Eugene Volokh
Excerpt:
There’s a lot of appeal to the “you take the job, you follow the rules — if you have a religious objection to the rules, quit the job” approach may be. But it’s not the approach that modern American federal employment law has taken, or the approach that the state religious exemption law in Kentucky and many other states has taken.
Muslim truck drivers who don’t want to transport alcohol, Jehovah’s Witnesses who don’t want to raise flags, Sabbatarians (Jewish or Christian) who don’t want to work Saturdays, and philosophical vegetarians who don’t want to hand out hamburger coupons can take advantage of this law. Conservative Christian county clerks who don’t want to have their names listed on marriage certificates and licenses likely can, too.
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/09/04/when-does-your-religion-legally-excuse-you-from-doing-part-of-your-job/
Bob, Let’s look at a scenario under your pretense that your religious belief should legally exempt you from carrying out work on a Saturday. I hired you and I need work done on a couple of Saturdays although we most often just work Monday to Friday. I failed to ask you your religious persuasion because I felt that would be discriminatory nor did you tell me until after you were hired. Should I be able to fire this employee if he refuses to work on a Saturday?
Let say you told me you cannot work on Saturday but my business changes and I now need someone that can work every Saturday. Should I be able to fire you and replace you with someone who can now do the job I need?
The more I study dogmatic religions the more I realize one of the reasons why the world is so screwed up. Why we have so many wars and why there are so many different Christian denominations and Jewish and Muslim Branches. The truth is none of you can really figure out what God does or doesn’t want, yet claim to. You find a group who does agree like you and then because of you numbers, you all claim to be God’s chosen people. You all obviously interpret the Bible differently (God’s Word) or you wouldn’t have so many sects.
As Thomas Paine stated, “I do not believe in the creed professed by the Jewish church, by the Roman church, by the Greek church, by the Turkish church, by the Protestant church, nor by any church that I know of. My own mind is my own church.”
All national institutions of churches, whether Jewish, Christian or Turkish, appear to me no other than human inventions, set up to terrify and enslave mankind, and monopolize power and profit.
http://www.ushistory.org/paine/reason/reason1.htm
Some of you folks should read what he said that helped mold the 1st Amendment. Even though he was soon exiled, their is little doubt that the majority of Citizens embraced his words and thank God, there might not have been the Freedom of Religion clauses without it. We would still be under the Crown and Church of England that Exiled him.
She’s already gotten her accomodation. If the state is accepting the certificates her deputies are issuing, she should accept the accomodation and stop her nonsense. Her signature is not needed.
Inga – state law requires the signature of the County Clerk to be on the marriage licence. Certainly a claim can be made that those licences issued without her signature are invalid.
@Max1 – “p.p.s. Who is Kimmy voting for: Hillary or Bernie?”
Here’s the link, their all Democrats! lmao!
http://rowancountyclerk.com/wp-content/uploads/2014/05/2014-rowan-co-primary.pdf
I just heard on CNN that Rowan County issued 7 same sex marriage licenses in the absence of Kim Davis and not one of them had her name on it.
Her attorney is stating that the deputy clerks lacked the authority to change the certificate and that “everyone knows” that the Rowan County Clerk is Kim Davis; thus he wants the office of the county clerk removed as well.
Since any reasonable accommodation would enable her to wash her hands of the entire process of issuing same sex marriage licenses while retaining her job as clerk, I fail to see how the state’s implied decision to accept those certificates as valid doesn’t solve Davis’s problem.
Bob Stone wrote: “Since any reasonable accommodation would enable her to wash her hands of the entire process of issuing same sex marriage licenses while retaining her job as clerk, I fail to see how the state’s implied decision to accept those certificates as valid doesn’t solve Davis’s problem.”
I agree with you Bob. The only question is whether the State holds her responsible for allowing her office to issue marriage licenses that are not legally valid according to State law. From what I remember reading about her hearing before Judge Bunning, she asked him to declare the marriage licenses valid without her signature. He refused to do that, obviously because he does not have the authority to do that. Only the State Legislature has the authority. The presumption is that the licenses that have been issued under the pressure of the federal court are not legal according to State law. Governor Beshear is not sticking his nose in it, though it appears clear that he does not support religious freedom because of his veto of the State’s RFRA.
Davidm2575 …Kim Davis was elected not enlisted and her citation of “God” doesn’t compare to a soldier refusing an unlawful order on moral grounds, plus the laws of warfare (which prohibit slaughter of innocents), whether they are religious or secular. She had the option of either citing state law and creating a SCOTUS challenge, or resigning for moral reasons vis a vis her faith …e.g., that she cannot carry out her duties. She does NOT own the position of clerk/registrar. She decided her personal 15 minutes meant more to her. I am still unimpressed. Where I live her slippery slope position could easily devolve in to just whose God are we talking about and citing. No thanks.
At this point the whole Kim Davis affair bores me. She’s managed a personal circus side show…goody for her. Meantime who will challenge the errant SCOTUS finding of June this year? I rather doubt a successful challenge will cite an individual’s personal belief in God as the basis for challenging a SCOTUS over-ride of a state’s right.
I am at the point where I almost no longer care about this circus of insanity we inflict upon ourselves.
Aridog wrote: “Kim Davis was elected not enlisted and her citation of “God” doesn’t compare to a soldier refusing an unlawful order on moral grounds…”
I fail to see what being elected versus enlisted has to do with it. Last time I checked, the acknowledgment of God was a Constitutional right. Why aren’t your panties all in a bunch when Obama acknowledges God at the end of every State of the Union address?
Aridog wrote: “She had the option of either citing state law and creating a SCOTUS challenge, or resigning for moral reasons vis a vis her faith …e.g., that she cannot carry out her duties.”
She did cite State law. The Kentucky Religious Freedom Restoration Act was passed several years ago over Governor Beshear’s veto. The Kentucky RFRA says:
“Government shall not substantially burden a person’s freedom of religion. The right to act or refuse to act in a manner motivated by a sincerely held religious belief may not be substantially burdened unless the government proves by clear and convincing evidence that it has a compelling governmental interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest. A “burden” shall include indirect burdens such as withholding benefits, assessing penalties, or an exclusion from programs or access to facilities.”
Kim Davis also has argued that she is protected by the First Amendment and that the government forcing her to speak in agreement with homosexual marriage is a violation of her inalienable right to free speech. Kim Davis has stated that removing her imprimatur, her name and signature, from the marriage licenses would accommodate her religious conviction. That seems like a perfection rational and reasonable accommodation considering the millions of Americans who share the conviction of Kim Davis that homosexual unions are not the same as marriage. The people who are acting irrational here are the homosexuals and the homophiles who support homosexual marriage.
By the way, this has cost Kim Davis a lot more than 15 minutes. Your reference is an overused pejorative.
“She’s fighting for justice on the level of religious law. But we don’t live in a theocracy.” –Katherine Franke, Columbia Law School
http://www.aol.com/article/2015/09/09/clerk-who-denied-gay-marriage-licenses-goes-back-to-work/21233435/
“Katherine Franke, a professor at Columbia Law School, said the state legislature should find the political will to boot Davis from office since she has ignored her oath of office in favor of her religious conviction.
“”The claim she’s making is a clear loser. It’s a political claim, it’s not a legal claim,” Franke said. “That’s why she lost on the district level and the circuit level and she will continue to lose. She’s fighting for justice on the level of religious law. But we don’t live in a theocracy.””
Yep. “Boot” her.
anonymous – she is a county officer, not a state officer. The state legislature cannot boot her. Short of convicting her of a felony, you will have to get the people of the county to recall her. If they start now, she is still in office for 4 months, minimum.
See, here’s the thing, davidm, the order to issue marriage licenses is indeed lawful. First, Davis is insisting on exercising a personal right in a civic capacity. She has no legal right to do so. She is imposing a personal belief on society. Secondly, she stopped issuing marriage licenses to all couples, gay or straight. She’s making everyone suffer in order to punish a few. She has no legal right to sanction anyone, merely to perform her job. Failing that, she needs to resign.
Personally, I think she performing an invaluable service to this nation. Just as American society was moved further in the direction of civil rights protections by witnessing the ugliness of racists through their actions in the fifties and sixties, Davis is providing a stirring example of how much work needs to be done to overcome the hatred of the small-minded segments in this country.
T. Hall wrote: “First, Davis is insisting on exercising a personal right in a civic capacity.”
No, that is not an accurate description. She has a very public religious conviction shared by millions of Americans that she should not put her imprimatur on immoral behavior. She is being forced by government to act contrary to her conscience, and the government has no legal right to do so.
T. Hall wrote: “She is imposing a personal belief on society.”
No she is not. She has not forced anyone to reject gay marriage, nor has she even spoken against it in her capacity as a County Clerk.
T. Hall wrote: “Secondly, she stopped issuing marriage licenses to all couples, gay or straight. She’s making everyone suffer in order to punish a few.”
Actually, she approached the governor about the problem as soon as the decision came out in June. The delay here is caused by Governor Beshear’s inaction. There are 10 other offices less than an hour drive away where marriage licenses can be obtained. Nobody in the State is required to obtain a marriage license from her. Such is hardly a substantial burden of suffering on those seeking a marriage license. This situation would only exist until the legislature meets again in January, unless a special session was called.
T. Hall wrote: “She has no legal right to sanction anyone, merely to perform her job. Failing that, she needs to resign.”
Kim Davis has not sanctioned anyone. The law requires the marriage license to have her personal imprimatur on it. That’s the problem. Back when the law was moral, people put their name on government work, even the tax collectors. We trusted the person behind the office. Things have changed now as the secularists have worked hard to transform our government into a lawless and corrupt enterprise based entirely on money and greed.
David really, Under your premise, as a government employee, I would not be bound to do anything that I find morally apprehensible. You understand as a libertarian I find government morally apprehensible, because it takes property from those who it rightfully belongs to and gives to others it does not. And it does it by force or coercion under the threat of fines, forfeiture and or imprisonment. The question is, could I still get paid.
Kim Davis: represents the people
Federales: represent the Carpetbaggers
Strip the US supremes of the ability to legislate morality or dissolve the Union.
It’s untenable, time will show
The state is now our God and only the state can legitimize marriage? It used to be a family affair and government has no business having ANYTHING to do with it You may not agree with this everything in this video but it should be food for thought regardless.
Roy Potter: The Marriage License Deception
https://www.youtube.com/watch?v=atsN_7BztJc
Now It’s Really Time for Unmarried Equality
http://www.unmarried.org/featured/now-its-really-time-for-unmarried-equality/
Heldegard, the Roy Potter video is inaccurate about when marriage licenses were first issued. They began in the Middle Ages, not one or two hundred years ago. Furthermore, marriage is not private. It is a public institution. Therefore, it is entirely proper for States to regulate them to some degree. One important reason for States to regulate marriage is because the natural consequence of marriage is the creation of children. Too many deadbeat dads who do not take care of their wife and the children that they father. When the duties and obligations created in a marital union are neglected or forsaken, the courts should recognize the marriage relationship and administer justice. A society that does not properly regulate marriage will cease to be a civilized society because marriage and the family created by it is a cornerstone and foundation of civilized society.
David,
In your comment to Heldegard, your justifying the statist BS that everything should be regulated by government because you must force people to do what’s right. A good legal system is supposed to handle people who break their marriage contracts but because the judiciary is under the administration of the nation state, of course their is cronyism and corruption throughout it’s ranks and therefore justice is seldom served, especially for the middle and lower classes who cannot afford to pay off the system as well as the wealthy. And don’t argue, there are to many books on this particular subject to argue that this not true.
David, you are also wrong about when marriage licenses started. It is different in different societies. There were not even public police in most of England until well after 1900. Generally, churches, synagogues and mosques have been where the records were kept for births, deaths and marriages in England, the Colonies and the States once independent. Do some genealogy work and you will find this as also being true. I can only assume that many marriages occurred with only a document/contract or perhaps it being writing in the front or back of a Bible as evidence depending on how remote you where.
Marriage is a private contract that religion tradition says you must let your family and friends be a part of in a ceremonial proceeding. You are not required to let them know every aspect of your private contract. People even make up their own marriage vows as part of the proceeding. Wouldn’t it be great if they did have to disclose the entire contractual elements. That would at least make marriage ceremonies interesting. lol.
Marriage is just another control mechanism of government and was started when church and state were in cahoots. Just another means of extracting money out of the flock and never forget to pay the priest of rabbi.
anonymous,
Sorry but I forgot the punch line…
… “Professional Grifter”.
So here is where we’re at in the crossroads of Faith in America and Law…
“Conditions of Release”
https://pbs.twimg.com/media/COZVtX_W8AAngv4.jpg
https://pbs.twimg.com/media/COZVtYTWIAANlKD.jpg
Oh sorry…
Did I mention that Ted Cruz was forced to be an audience member to a Mike Huckabee campaign event?
https://twitter.com/chrisgeidner/status/641325502289059841?ref_src=twsrc%5Etfw
I’ll put this here…
MATTHEW 23: 1 Then Jesus said to the crowds and to his disciples: 2 “The teachers of the law and the Pharisees sit in Moses’ seat. 3 So you must be careful to do everything they tell you. But do not do what they do, for they do not practice what they preach. 4 They tie up heavy, cumbersome loads and put them on other people’s shoulders, but they themselves are not willing to lift a finger to move them.
5 “Everything they do is done for people to see: They make their phylacteries[a] wide and the tassels on their garments long; 6 they love the place of honor at banquets and the most important seats in the synagogues; 7 they love to be greeted with respect in the marketplaces and to be called ‘Rabbi’ by others.
This passage leads directly to the seven woes Jesus casts upon the Teachers of the Law and the Pharisees…
(bolding mine)
Nick
“LisaN, The left STOMPS out dissent. ”
= = =
Show us the dissent that was stomped out today?
p.s.
And while you’re at it, also find us one Democratic candidate in attendance at this political party.
Ted Cruz attempted to get stage time and was told there was no room on Mike’s stage.
p.p.s.
Who is Kimmy voting for: Hillary or Bernie?
Annie
“Max, The First Amendment Defense Act sounds like The Shred the Constitution Act.”
= = =
When they start talking about how the President isn’t their Godly King, be scared.
anonymous
“Huckabee: ‘If Somebody Needs To Go To Jail, I’m Willing To Go In Her Place’ ”
= = =
LOL… The host attempts to ‘out martyr’ his political martyr he’s campaigning on the heels of…