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
What about Jonathan Turley’s understanding of the applicable law above in his blogpost?
hskiprob asked…
Can a military officer who all of a sudden becomes saved by Christ and decides to become a conscientious objector as some sects do, remain in the military, be fired for insubordination or should he resign his commission?
No, a military officer CANNOT become a conscientious objector. All officers are in effect enlisted, not drafted, by virtue of their application for officer candidacy. They have no alternative but to resign or be discharged for cause (insubordination).
That said, a military officer does have the responsibility to disobey unlawful orders, as we’ve discussed before. He can be court martialed for failure to do so. Conscientious objection does not qualify as a reason for disobeying otherwise lawful orders…the military rules & regulations are very clear on this subject.
I have tried Bob so I hope Napolitano might get through to you.
https://www.lewrockwell.com/2015/09/andrew-p-napolitano/the-christian-right-is-wrong-2/
What both Christians and Progressives do is to make individual rights subjective to their feeling/beliefs.
I.E. All children have the right to a free education. This is incorrect. Why? Because for this to be a right, it cannot dispose/usurp someone else’s rights. You cannot usurp someone else’s right to benefit yourself. This is the basis of individual rights. Free education requires one group who the money rightfully belongs to, to by force, pay to the other group, that which it does not rightfully belong to. In fact this is a “privilege”, that is granted to those children by the political system. It is not a right.
You have the right to practice your religion. You do “not” have the right to deny someone else a right, even if it is not enumerated in the Constitution. An individual right is inalienable. It is not derived by law or dictate. Whether you like it or not, this is the foundation of your Constitution. It is not supposed to be changed except by very specific means and they are delineated in the Constitution. The intent of the Constitution is well documented in various ways. Ignoring it or abrogating it, destroys the vary foundation of our rule of law and I don’t give a damn what you feel is right or wrong.
Sadly, we have allows those in power over especially the last 150 years to abrogate the Constitution, both Federal and State I may add and we now are feeling the affects.
We The People have never given government the permission to regulate marriage and if so, it should have been struck down as unconstitutional by the Judiciary if they had any integrity and brains.
hskiprob,
“Fair enough Bob. Title VII is quite large so could you please guide me to the specific provisions.”
Rather than waste my time by having me hold your hand, why not try reading the article by Eugene Volokh I posted earlier?
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/09/04/when-does-your-religion-legally-excuse-you-from-doing-part-of-your-job/
From the article you presented:
“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”.
Her own attorney said that the licenses were invalid unless she signed them. I think it placed a burden on at least the customers and her co-workers. You didn’t read that part?
I also disagree heavily with the premise of the author. These type cases are what happens when the employees and public servants start trying to run the organization. We have rights and the employee has the right to work somewhere else and the employer has the right to accommodate them or not.
Don’t you see the slippery slope and the subjective nature of this argument. Should I litigate my differences either as employee or employer every time one or the other objects to something. How do I prove that it is not to costly?
I understand the socialist religion prohibits them from working hard. How do we accommodate them. Yea, more government hiring. Let’s also require maids of honor and brides maids to be licensed to pay for the increase in government employees.
Skip wrote: “Don’t you see the slippery slope and the subjective nature of this argument. Should I litigate my differences either as employee or employer every time one or the other objects to something. How do I prove that it is not to costly?”
You are making this way more difficult than it really is. The only accommodation is removing the legal requirement of the County Clerk giving her imprimatur to same sex marriage licenses. It only goes to court if your position is that it is too much of a burden to remove her imprimatur. They already had to redesign the form to accommodate gay marriage. They were asked to remove it prior to that time. They should have listened to Kim Davis back then, but they did not. They don’t care. I don’t see why anyone would claim it can’t be done when driver’s licences, hunting licences, and fishing licenses do not require her imprimatur.
The law already is that reasonable accommodation for religion should be made. If your position is that it is a slippery slope, then you don’t agree with the law as it is written now.
I thought that this is the function of the Clerk. Period. So let’s change the laws to accommodate her and every other religious conviction of every single public servant and private employee.
Can you imagine the President not signing a bill because he’s morally apposed to a portion of it.
You don’t not see a slippery slope here?
I do not agree with the law. If it is my business and I want to hire hot looking women with large breasts, I have that right. Just as I have the right to hire handicap people with one leg. I have the right to hire and fire anyone I wish for any reason. As public servants they must abbey the law and religious freedom is part of the process that goes both ways. Should we allow gay couples to require that the signatures on their marriage license be signed by a gay person.
hskiprob,
“You don’t not see a slippery slope here?”
“4. The rule accepts the risk of slippery slopes, and counts on courts to stop the slippage. Once some people get a religious exemption, others are likely to claim other religious exemptions; indeed, some people who before managed to find a way to live with their religious objections without raising an accommodation request might now conclude that they need to be more militant about their beliefs. Here too, the law accepts this risk, and counts on courts to cut off the more expensive accommodations.”
Napolitano’s analysis neglects the applicable law; i.e. Title VII and KY RFRA. Thus, it’s pretty useless.
Law is a search for process; not gut feelings and speculation.
If you want to understand the applicable law, then I suggest you stick to authors who specialize in First Amendment cases; such as Eugene Volokh.
hskiprob – the President can veto the bill, refuse to sign it, sign it, sign it with a sign statement (laying out what parts he will and will not uphold).
Skip wrote: “Can you imagine the President not signing a bill because he’s morally apposed to a portion of it.”
Yes, I can imagine that. The President has the right to veto any bill for any reason. And the Constitution gives the way to override his moral opposition to a law.
http://www.rightwingwatch.org/content/oath-keepers-send-armed-guards-protect-kim-davis-us-marshals
“Oath Keepers Send Armed Guards To Protect Kim Davis From US Marshals
The Oath Keepers, the anti-government “Patriot” group that mounted an armed standoff with the Bureau of Land Management at the Bundy Ranch, stationed armed guards outside of military recruitment centers after the Chattanooga shooting, and unsettled Ferguson protestors when they showed up carrying assault rifles, is now offering anti-gay Kentucky clerk Kim Davis a “security detail” to protect her from further arrest if she continues to defy the Supreme Court’s marriage equality ruling.
Oath Keepers founder Stewart Rhodes announced yesterday that he had reached out to Davis’ lawyers at Liberty Counsel to offer the protection of his group, which he says is already forming a presence in Rowan County, Kentucky, where Davis was recently released from jail after prohibiting her office from issuing marriage licenses. Rhodes said in a statement that his position has nothing to do with gay marriage, but rather his conviction that Davis had been illegally detained by the federal judge who held her in contempt for violating multiple court orders.”
Good grief, here come the loons.
I find it odd that while I agree with Ms Davis’ personal position, that I don’t think she has the right to impose it on government. That, and my “reasons” are semantic, vis a vis the word “marriage”, not religious, though I am Catholic. As I’ve said several times, where I live government imposition of religious viewpoints could be problematic in a big way. She had a choice, as I did in my time, but she opted for the wrong one. What the heck, maybe I did too…let’s ask those I protected by my decision to reign/retire? I don’t regret it and doubt my former subordinates do either.
hskiprob,
Almost all of the objections I’ve heard in this case can be boiled down to a refusal to acknowledge the nature and reality of deeply held religious beliefs.
N.B. “Tolerance” means more than just being exceedingly tolerant of your own viewpoints.
Perhaps it escaped your notice, but you failed to provide a single legal reason for denying Kim Davis a reasonable accommodation under Title VII and the First Amendment and KY RFRA. Instead, you regaled us with your strongly held opinions regarding organized religion.
A strongly held opinion is neither a legal argument nor license to disregard the law or an opposing point of view. Accordingly, your opinions about organized religion are wholly irrelevant to the legal equation.
Should you ever desire to approach the topic objectively, may I suggest this article by First Amendment law maven 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/
Fair enough Bob. Title VII is quite large so could you please guide me to the specific provisions. I can handle the 1st Amendment and as I said I see nothing in the 1st Amendment that should logically protect her from being fired.
Also, please understand there is a huge difference between public employment and private employment. It is not my fault that public employees due to their unions often times have gained more privileges then private employees. As an example, it is common knowledge that it is much harder to be fired as a public servant than as a private employee. Private employees can be fired almost without cause.
Also our system of the protection of inalienable rights have also been unlawfully abrogated by the ruling oligarchy and the Judges who serve them. The denial by the Federal Courts in early 2008 of the right to petition for redress of grievances is a prime example.
You also have not answered my first two questions and I would also like to ask you another question:
As public servants, do they have the right to object to an action or activity that they are supposed to do which they feel would go against their religious convictions?
Should a doctor who becomes a Jehovah’s Witness refuse to provide blood transfusions in an ER setting or should he quite his position or asked to be reassigned?
Can a military officer who all of a sudden becomes saved by Christ and decides to become a conscientious objector as some sects do, remain in the military, be fired for insubordination or should he resign his commission?
Do you believe that members of the military are subjected to involuntary servitude by the nature of military command? Current military command under the auspices of the nation state is a none democratic hierarchical organization with the only person who is elected being the commander and chief who cannot logistically be responsible for the actual interviewing, hiring and firing under his command.
Homophobic Tenn. pastor now hawking ‘no gays allowed’ merchandise at his store
http://wate.com/2015/09/09/grainger-county-store-owner-sells-out-of-anti-gay-merchandise/
Legal hypothetical to ponder, seeing the wave of Constitutional uprising we’re witnessing regarding “Religious Convictions” and allowances within law to afford people of certain faiths the ability to overtly discriminate against chosen groups of people:
Can a business owner who is a member of The Church of the Antichrist place a sign in his business reading
Max-1,
It is a criminal offense to do that in Washington:
http://apps.leg.wa.gov/RCW/default.aspx?cite=9.91.010
OK A quick roundup of Religion in America*:
You can deny someone their Constitutional Right to Freedom IF you’re Christian…
… However should you refuse to serve a beer based on your faith it is because you’re a filthy Muslim.
*in a nutshell
Bob Stone,
So, I CAN refuse to obey Federal Law because it isn’t gawd’s law…
Davism
Murder = Marriage?
You have got to be kidding me…
Lisa N
Mitch McConnell is a Dem?
Too much FOXNews(R) is bad for the brain.
Let their chiron tell you otherwise…
Max-1 – it is chyron not chiron.
She surely has broken state law and most likely her State Constitution. As a State Official she has taken an oath to follow the law and the State Constitution. If she doesn’t like the law either change it or quit. It just goes to show there can be no rule of law with religious zealots. They like all people who have a motive, will manipulate the law to fit their agenda.
Bob Stone “A government employee cannot be forced to express as righteous a behavior that they view as unrighteous.” Really, since when was anyone asking her to express anything. I surely do not respect this women’s opinion, nor were the couples asking for it. Her job was to issue marriage licenses to people who qualified for it. It is not her job to determine the qualifications.
Tolerance: He who has never sinned should cast the first stone. She’s is a hypocrite like most Christians. They choose what rules they want to follow and which ones they don’t. Like here divorces.
I have met a few good Christians but most are wacked out and have not idea what Christ was really trying to say and do. Does love thy neighbor as they self mean anything. Oh that’s right except if he or she’s a homo. How about a hypocrite, is that an Obamanation unto God.
Skip wrote: “She surely has broken state law and most likely her State Constitution. As a State Official she has taken an oath to follow the law and the State Constitution.”
No, she is actually upholding the State Constitution and her oath of office. It is the federal government that is interfering and declaring the State Constitution invalid.
The State Constitution says in Section 233A: “Only a marriage between one man and one woman shall be valid or recognized as a marriage in Kentucky. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.”
This Constitutional Amendment was passed in 2004. It was approved by 75% of the voters.
http://www.lrc.ky.gov/Legresou/Constitu/233A.htm
Skip wrote: “She’s is a hypocrite like most Christians. They choose what rules they want to follow and which ones they don’t. Like here divorces.”
This is irrelevant from a legal standpoint, but to be fair to her, she was not a Christian during the time of any of her divorces.
Your rant about working on a holy day is not even close to being the same as forcing your employee to give her imprimatur to criminal conduct (per that religious person’s laws and doctrine). But nevertheless, our federal Constitution still gives religious accommodation for the Christian holy day with the Sundays excepted clause. Do you have a problem with our Constitution giving our President Sunday off in regards to signing a bill into law?
I am arguing her ability to disobey the law and her job description, not states rights. The Supreme Court has made their determination. It’s now law. Just because you disagree don’t come up with fallacious arguments because you think you are one of God’s chosen ones and are above man’s law.
She took away the rights of the couples to get marriage licenses. Title VII is quit clear. The accommodation must not harm the customers.
Skip wrote: “I am arguing her ability to disobey the law and her job description, not states rights. The Supreme Court has made their determination. It’s now law.”
No, it is not law. The Supreme Court gives opinion on how to apply the law to specific cases. Over time, a common law is developed based upon their decisions. A single Supreme Court case does not make law, especially when the Supreme Court departs from the Constitution and creates powers for the federal government that are not delegated to it by the Constitution.
When the Supreme Court becomes so lawless and irrational as to do what they did in Obergefell, the States and the people have a duty to disobey the court and put it back in its place. Otherwise, we will be a country ruled by an oligarchy. We will be a country ruled by an unelected tribunal. Our Constitution did not create such a system of government. I am amazed how blind people are to this principle of government. Only the progressives and liberals and anti-religious people of this culture are the ones who want to make the Supreme Court the Supreme Ruler and take away democracy.
Skip wrote: “She took away the rights of the couples to get marriage licenses.”
No, she did not take away anyone’s right to get a marriage license. There were more than 100 places in the State still giving marriage licenses, and about 10 locations within an hour drive of the office of Kim Davis where they could obtain a marriage licence. But even that inconvenience was not caused by Kim Davis, but by Governor Beshear because he would not respond to her communications about the problem with religious conviction created by the court’s ruling. If Governor Beshear had responded properly, as it was his elected duty to do, there would not have been any inconvenience whatsoever.
david – the issue with the Nazis is a special case. They swore an oath of loyalty to Hitler which became an issue when some of the Catholic ones wanted to assassinate him. They actually got dispensation of their oath from a high ranking priest.
ISIS does that…
Curiouser and curiouser the far Right seem to think anarchy is about following the law and patriotism is about the buybull….
When they insist that gawd is their president, know you’ve lost your Nation to religious zealots seeking to enslave you by THEIR faith…
I’m going to my nephew’s wedding this weekend. Should I throw a Kimmy D and insist the bride be in a full Burkka?
Too bad someone didn’t have the balls to stand up to SCOTUS and FDR when he was rounding up, and locking up, Japanese-American citizens.