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
“The whole concept of government marrying people should be blasphemous to any Christian.”
So are we now veering into the territory of determining who is a ‘ true Christian’ and who isn’t?
If one believes that marriage is an agreement with God going to the state to seek permission to marry is blasphemous by definition this is not my opinion.
The only way that this could not be so is if you believe that guberment is God.
Marriage is also legal contract. Whether married in church or in a courthouse, it’s up to the participants.
Annie wrote: “Marriage is also legal contract.”
Marriage is more than a legal contract. Maynard v. Hill.
InalienbleWrights wrote: “The only way that this could not be so is if you believe that guberment is God.”
I don’t believe government is God, but I do believe that God instituted governments among men to secure their liberties by punishing evildoers.
davidm
Whose gawd?
Kim Davis’s gawd?
But that’s not my gawd davidm.
Should we all be subject to your gawd?
What is that called when a people are ruled by one person’s gawd?
… Oh, let me guess, Liberty?
Was it youDavidM that mentioned being in favor of a Constitutional Amendement recognizing God? Whose God and to what purpose?
Annie wrote: “Was it youDavidM that mentioned being in favor of a Constitutional Amendement recognizing God? Whose God and to what purpose?”
There is only one God, Annie. As a good Presbyterian, I would expect you to acknowledge that.
David, we are not a Theocracy. I don’t expect all of the populace of the U.S. To recognize my God or my form or religious belief.
Annie wrote: “I don’t expect all of the populace of the U.S. To recognize my God or my form or religious belief.”
It is not about expecting all the populace to recognize your God. It is about the authority of government recognizing God.
There is one Creator of all mankind. All mankind therefore ought to acknowledge him. Government, as ruler of civilization, ought to recognize that their laws come from God’s laws. The moral authority of all laws comes from God’s will. The laws of civilized society provide for an order that stems from the will and mind of God.
This is not trying to force any one religious form upon anyone. It simply acknowledges that civilization is based in theism. It doesn’t even force people to believe in God if they choose not to believe. It would demonstrate that government acknowledges God and that a faith in God is in accordance with public policy. It would make clear that people of faith are not violating the separation of church and state principles established by our government. It would make clear that government officials may have a faith in God and may publicly acknowledge God in the performance of their governmental duties.
And all this “good Christian, good Presbyterian” stuff smacks of some dystopian future in which we have a Theocratical government in which we must prove how Religious we really are. We know full well what would happen to non Christian religions.
There’s no need for her to be bailed out. She is being jailed only for contempt. All she has to do is comply and she will be released.
A petition…
require all public officials to be sworn in to office on the Constitution and not the bible or other religious texts.
https://petitions.whitehouse.gov/petition/require-all-public-officials-be-sworn-office-constitution-and-not-bible-or-other-religious-texts
How can a person be asked to uphold the Constitution of the United States when they use the bible to be sworn into office and are asked to swear to God?
In an effort prevent future instances of public officials using their religion to justify their own bigotry, we demand that legislation be passed at a federal level that bans the use of the bible, or any other religious text, at the swearing in ceremonies of public officials. Instead, public servants will be asked to uphold the Constitution of the United States by swearing in on the Constitution of the United States. Leave God and religion out of it!
I don’t know you can be so ignorant as to think that people with backbone and moral principles (whether we agree with them or not) will somehow throw those away by swearing an oath to the Constitution?
If that were the case cops would follow the Constitution and stop enforcing unconstitutional drug and gun laws.
People swear solemn oaths by God and the Bible/Koran all the time and ignore said oaths all the time. It’s a singularly ineffective way to compel obedience or loyalty.
Dumb petition, Max. The framers believed that the moral strength of the law is that it comes from God Almighty. He is the original Lawgiver. Therefore, swearing an oath on the Bible was considered higher than swearing an oath on the Constitution. John Locke said that tolerance should be extended to all religions, but not to atheists. The reason was that they had nothing to bind them to their oaths and obligations in society. Without God to answer to, cheating would be rampant and government would be unable to police all the violations. Civil society would cease to exist.
Just for the record, I consider myself a Christian and I disagree with the majority of things that you say. You seem to have a love affair with mans laws and even see government and it’s laws as your God.
Have you ever questioned whether the scribbles of psychopaths on paper (law), may be illegitimate?
The whole concept of government marrying people should be blasphemous to any Christian.
InalienableWrights wrote: “The whole concept of government marrying people should be blasphemous to any Christian.”
I am not a Christian. Marriage is of public interest; ergo, government should define and regulate it.
“Nowhere in the Constitution does it grant powers of the federal government to define or regulate marriage, and therefore such authority rests with the States and the People as per the Tenth Amendment.”
David,
That is a very reasonable point and quite frankly one that should redirect the discussion back onto the greater problem of the administrative state. No doubt we can and will observe and opine on these issues as if the root cause is simply a clerk that won’t do her sworn duties. That is a myopic argument and we would all be better served to zoom out for a moment and consider this from the greater threat to liberty; the abuse of power originally reserved to the states and the people resting in the hands of the central government.
Fans of the bureaucratic state begin arguing with the assumption ALL problems have a central government solution and then when that doesn’t fit they force something that usually creates other problems. Of course that next problem requires further central government solutions and so grows the bureaucratic state.
What is the fundamental issue here? What role (constitutional authority) does the federal government have, if any, in this issue? Did the federal government create this existing problem by making itself the arbiter of who gets what as a result of becoming “married”? If the federal government returned this issue to the states as opposed to piling on top of an existing abuse of power, would this problem be resolvable? Are “marriage” benefits unconstitutional as they discriminate against those unmarried? Why is a marriage license required? Are they the result of a problem created by government?
having to have a state license to perform or enter into a religious ceremonial is just a tool of social engineering by elites. Also, it’s a convenient way to collect a fee.
That’s rather, um, convenient.
But I’ve run a search for those words in multiple versions of the Bible. Can’t find them anywhere. Plenty of stuff about God being all powerful, omniscient, etc., plenty of stuff about God intervening in spectacular ways on behalf of the faithful (and she is a self-described “voice of God”), but nothing about God being so helpless in the real world that his help is described as irrelevant.
You obviously not being a Christian would not know that they are not in scripture.
I never said they were…. re-read what I wrote.
InalienableWrights
Which is different than what Christ believed… The Father helps those who help others.
Why doesn’t she simply ask her all knowing, all powerful, omnipresent God to take care of this?
That is not something that most Christians believe Fiver…. most subscribe to “God helps those that help themselves”
Well, there are folks down here in Louisiana who work in the Parish Clerk’s Office and they say that they do not want to wait on fat people. I said to the guy in the bar who was ranting about this that Kim is fat.
He said that she is not entitled to be a Clerk because she is fat.
The guy mimiced a Randy Newman song about Short People and interwined the word Fat for Short.
“Dont want no FAT people. Dont want no Fat people round here.”
My comment is that the photo of Kim speaks a thousand words and the lyrics do fit.
Beldar – if your Parish does not want to serve fat people they are not getting any work done. I have seen pictures of many of the Parishes and ‘fat’ is the one word the stood out to describe the residents.
In this instant case, the SC clearly legislated from the bench. For JT to say the discussion is over is just silly and on this case shows him to be out of touch. I wonder how long it has been since he has been to the County Clerk’s office? I am sure he has a runner to do that scut work for him.
JT, the discussion is over when ALL the people say it is, not before.
I am having a hard time wrapping my head around the fact that Kim Davis is condemned by the left as a stupid religious nut who deserves no mercy and is jailed without bail, while the mayors of sanctuary cities all over the United States are hailed as enlightened, loving leaders as the citizens of their cities are murdered in cold blood by illegal immigrants who benefit from the sanctuary policies.
Read a great comparison: What if a government official of the Quaker faith denied gun permits or censored military recruiting ads based on their religious faith?
Not a god example. Gun permits are clearly criminal as they turn a right into a permission. Anyone involved in enforcing any of these illegitimate gun laws has committed the crime of violating someones inalienable rights.
I would only respect her if she refused to do ALL marriages. The state has no place in turning the right to marry into a permission granted by the state with all of the strings attached.
InalienableWrights wrote: “I would only respect her if she refused to do ALL marriages.”
That is exactly what Kim Davis did. She ceased issuing all marriage licenses and directed them to get the marriage license from another county, both gay couples and straight couples.
DavidM2575:
The “Supremacy Clause” in Article VI of the U.S. Constitution. This clause was later clarified under the landmark U.S. Supreme Court case of “Marbury v. Madison” as the “supreme law of the land”.
Ross, the Supremacy Clause concerns the Constitution, not how States should immediately respond to a particular Supreme Court decision. Furthermore, federal law being supreme over State law only applies if the federal law does not violate the powers granted to the federal government by the Constitution. Nowhere in the Constitution does it grant powers of the federal government to define or regulate marriage, and therefore such authority rests with the States and the People as per the Tenth Amendment. Therefore, the Supreme Court, which is supposed to be the interpreter of the Constitution, overreached their authority and violated the U.S. Constitution. President Jefferson’s concern about the Supreme Court becoming the despotic oligarchs of our nation has been realized.
Jefferson wrote: “The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.”
Steve Fleischer:
James Madison’s model of government was fundamentally different from Germany’s World War Two model of government. One could argue that if Germany had adopted Madison’s “constitutional democratic republic” model where the supreme (and superseding) loyalty was to the constitutional “rule of law” – not lotalty to a king, emperor or furher – most of the worst atrocities may have been prevented altogether.
In Madison’s model government officials, including prison guards and soldiers, swear a supreme loyalty oath to the U.S. Constitution. In World War Two era Germany all government officials, from prison guards to clerks, swore supreme loyalty to a single person. Therefore “treason” was defined as defying one man and loyalty was defined as following one man – not a constitution that guaranteed individual liberties for both citizens and non-citizens.
warspite said …
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?
The “Feds” have not instituted any such thing that I know of at present. “Potentially” is not a factor in the law. I was a DOD “Fed” for a couple decades. Yet I do not like War, even though I enlisted and fought in one. You may be of any religion, but in an elected position, or civil service position, or in an enlisted uniformed position, you are not free to proselytize it. As I said above, what’s next…ISIL advocacy?
Aridog, Kim Davis is not trying to proselytize, nor is she using her office to engage in religious advocacy. For a very long time now, secularists have argued that government should be neutral in regards to religion. Now in Obergefell, they are anything BUT neutral. They have waged a war against many religions within Judaism, Christianity, and Islam whose public policies, laws, and doctrines have for thousands of years criminalized homosexual behavior. Now the SCOTUS is forcing all the States to embrace sexual immorality and to give the government’s imprimatur and approval to such behavior by licensing it as if the same sex unions were equivalent and equal to opposite sex unions. It is far too easy to demonstrate that such same sex unions are not even close to being equal to opposite sex unions, but rather they are a perversion of our biological nature.
Like Warspite astutely observes, the decision of SCOTUS will make it impossible for many with religious convictions to serve in public office. They have now established a scheme whereby religion and government are not separate but co-equal partners against immorality, but rather enemies of one another. Religious freedom is gone unless the religious retreat from government or treat the government as an enemy. Some will find monasticism to be a peaceful way to deal with the problem. They will stop voting or even talking about government policy other than in a negative light. Others, like those of the Waco fiasco, will likely be buying more firearms in anticipation of additional religious conflict with the government in the future.
“Election” does not equal “entitlement.” MLK and Rosa Parks were NOT “elected” officials, Ms Davis was/is…and is where she belongs, in jail for contempt, and should be discharged for non-performance. Though I agree with her position,. it does NOT belong in the elected political arena. What will the great defenders say if the next elected official decides to cite ISIL as their guiding light?
Professor Turley wrote: “… that debate ended the minute the box holding the Obergefell opinions was opened in the Supreme Court clerk’s office on June 26.”
I would like for someone to show me the law that says a Supreme Court decision immediately forces a new legal policy upon the entire nation. It is my understanding that we have a system of checks and balances concerning the law. It seems quite ridiculous to assert that immediately on June 26, every State must immediately be forced to issue marriage licenses for same sex unions and opposite sex unions. Supreme Court decisions are based upon specific cases with specific circumstances. How that translates into general public policy remains to be seen.
I certainly acknowledge that when a Supreme Court decision is embraced with agreement, the States regularly immediately embrace the decision and rescind enforcement of the State laws that now appear to them unconstitutional. But what about when the decision of the court appears to many governmental authorities to be wrong?
When Abraham Lincoln gave his inaugural address, he addressed this situation in light of the Dred Scott decision. Following is what he said:
— From Abraham Lincoln’s First Inaugural Address in 1861 —
I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes.
——
I draw your attention to Lincoln’s words here: “… the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”
Lincoln acknowledges here a principle of law that if we were to simply bow to the Supreme Court the instant they make a decision, it improperly resigns our government into the hands of a few unelected Justices. The proper course of action, therefore, is to have patience and allow the other branches of government to work such that the legal path becomes clear. Those who think Davis must immediately resign or be put in jail are wrong. If she has a conscientious objection to signing licenses of marriage to those whom the Kentucky voters have indicated are not proper unions of marriage, and she believes that the State legislature is the proper authority to make the law clear, then let that work out. Those rushing to judgment are the ones who are acting outside the law. The Supreme Court has no authority to make law. They only interpret law. They have voiced their opinion that the law should redefine marriage more broadly than it traditionally has. Whether their voice will set precedence for our laws or not remains to be seen.