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
Annie,
That dystopian future will be set in a battle between Catholics and Presbyterians…
… The Mormons and Baptists lost in the first cycle of the American Christian Crusade.
The “real” meaning of the Fourteenth? Says who? Why should his take on it be believed? I love how these people tell us they know the “real” meaning of anything.
The Supreme Court didn’t MAKE a law. They struck down the unconstitutionality of another law. The newest canard, that the Supreme Court MADE a law.
https://i.imgflip.com/qltvr.jpg
US Constitution, Amemdment XIV, Section, states, in part:
For those who somehow believe that the constitution ends with the 10th Amendment.
You like most are falling for the false interpretation of the 14th fiver.
This is a good explanation of the real meaning:
Davidm said: “Our Constitution never created the U.S. Supreme Court to be an authority of the Constitution above the legislative and executive branches of government. Congress is coeval and coequal with the Supreme Court.”
I do not know how anyone can read the Constitution and come up with the idea that the 3 branches are co-equal, The legislature by far is the most powerful IF we stuck to the Constitution. This belief just goes to prove that if you repeat a lie often enough that the people will believe it. You do know where that quote came from?
DavidM . . You said it correctly but what relief would a body of people have when dealing with an activist Supreme Court whom clearly made a law, if their the highest court in the land?
Would Article 5, be the only relief? Or 2/3’s of congress to strike down this law and send it back where it belongs, the states?
Lisa N. wrote: “Would Article 5, be the only relief? Or 2/3’s of congress to strike down this law and send it back where it belongs, the states?”
Article 5 is one relief, but there other methods. One is for the people to recognize the limited Constitutional authority of the Supreme Court, that the Constitution does not allow the Court to define and regulate marriage. If the people ignored the Obergefell ruling, there is nothing the Supreme Court could do about it. There also are other remedies in court which are being sought. For example, Kim Davis can seek for the State to make a slight religious accommodation that would not require her personal signature on marriage licenses. And then there are the State legislatures who represent the people. They can recognize from a plain reading of the Constitution and the dissent opinions of the other four Justices that the Supreme Court tripped up and made a mistake. They can peacefully discern the legal issues and make their laws appropriately, ignoring the homosexual ideologies of the five Justices who think they can dictate to the country whatever they feel like dictating.
The fallacious notion that the Supreme Court rules over everybody with carte blanche authority needs to end, and it needs to end with this atrocious Obergefell decision. We must recognize the rule of law in our Constitution and not the rule of the holy Supreme Court.
davidm2575
1, September 7, 2015 at 2:04 pm
When they go beyond the authority granted to them by the Constitution, as they have done in Obergefell, then they have become a lawless court. Their ruling will not be obeyed.
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I recall that some crazy Preachers threatened to immolate themselves if the SC ruled in favor of same sex marriage. What happened to that? I suppose sitting in jail under contempt of court is far preferable to self immolation.
http://www.addictinginfo.org/2015/06/25/christian-pastor-promises-to-set-himself-on-fire-if-gay-marriage-is-legalized-nationwide-audio/
Annie wrote: “I recall that some crazy Preachers threatened to immolate themselves if the SC ruled in favor of same sex marriage.”
That was a crazy exaggeration liberals made about a comment Scarborough made. He never said he was going to set himself on fire as the liberals claimed.
If Davis is condemned for her religious practices and everyone claims then she needs to quit her job as she was sworn in to do.
But what instrument was used, in swearing her in?
Bible
We are a nation under the rule of law, not under the rule of kings, queens, or the Supreme Court.
That is the claim… however the very first president shit on the Constitution by creating a national bank and Adams followed this example with the alien and sedition act I believe it was called.
I that what a nation of laws is?
of laws. When they go beyond the authority granted to them by the Constitution, as they have done in Obergefell, then they have become a lawless court. Their ruling will not be obeyed.
JT’s absolutely right, but it doesn’t matter… These people consider “God’s law” (whatever they individually decide that is) to be superior to the Constitution. A Supreme Court holding means absolutely nothing to them, as they don’t recognize the Court’s authority. Asking whether they’d feel the same way if Davis said she was following Allah’s law is irrelevant; of course they wouldn’t feel the same way, that wouldn’t be following “God’s law” as they decided it means. They don’t believe in applying the same laws when the facts are changed; they’re tribalists, they believe the law should be whatever their own community of like-minded people think it should be at any given time. It’s a tragically short-sighted way of thinking, but they’ve convinced themselves that the Almighty himself is commanding them – after all, what other than God’s will could make them feel like they were right?
Mike wrote: “A Supreme Court holding means absolutely nothing to them, as they don’t recognize the Court’s authority.”
I recognize the authority of the Supreme Court. That is part of the issue here. Their authority is granted by the Constitution, and seeing that the Constitution put the authority to define and regulate marriage in the hands of the States and the people, then the Court has violated the Constitution and gone beyond their authority in the decision of Obergefell. Those who side with Obergefell and are against Kim Davis are the ones who are not recognizing the limited authority granted to the Supreme Court by our Constitution. They have lazy intellect and just think that they are the authority, the same way a monarchical government would just say that the authority of the Monarch settles all disputes.
Mike – oddly enough I find that I would support Ms. Davis if her God was Allah. Does not make any difference. The decision was seriously flawed.
Davidm2575:
Actually, the U.S. Supreme Court determines the constitutionality of all laws. States cannot make laws the are found to be violative of the U.S. constitution.
Kim wrote: “Actually, the U.S. Supreme Court determines the constitutionality of all laws. States cannot make laws the are found to be violative of the U.S. constitution.”
Our Constitution never created the U.S. Supreme Court to be an authority of the Constitution above the legislative and executive branches of government. Congress is coeval and coequal with the Supreme Court.
The U.S. Supreme Court is charged with the duty of examining the constitutionality of the APPLICATION
Ushering in the Theocracy from the backdoor of a Constitutional Amendment. DavidM, you’re not fooling anyone.
Well said, Ross @9:51 am. I couldn’t agree more.
Annie,
These Christians argue about marriage forgetting that sister Kim is but a two bit whore that has known three different men in the biblical sense and by all measures should be cast aside for what she is, a two bit whore. BUT NO! She’s ‘saved’ and we all can go to hell for her salvation. That’s her America.
JT
Kim Davis: Hero or Villain?
Neither. She’s a two bit whore looking to make a name for herself as a martyr.
What about people who aren’t CHRISTIAN?
Where’s THAT America?
*My form OF religious belief*
Annie,
The freedom found and the liberty expressed in only one true gawd…
… When the world is a pantheon of gawds to delight the senses?
To be subject to the object of one gawd…
… My offerings better not be bitter.
What will the elders do?
Toss me out of their temple?