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
Going through the motions…
… An Appeals to halt the Injunction that keeps Kimmy D finding Jesus from behind bars.
https://www.liberty.edu/media/9980/attachments/2015/090715_Emergency_Motion_for_Immediate_Consideration_and_Motion_for_Injunction_Pending_Appeal.pdf
Aridog, the state’s prohibitions against same sex marriage were overturned by the Supreme Court decision. How could she cite state law, when the state laws were deemed unconstitutional? Am I wrong?
Let me guess. Couldn’t handle the LSAT?
Nobody in Kentucky voted for “gay marriage.”
They did vote for her.
She’s serving her constituents well.
There is a judicial tyranny in this land and “democracy” has become more the exception than rule.
Aridog, look at the words and not the graphics. I don’t think these words embedded in the graphics are “cute”.
Annie … cute comments via graphics, however the matter really is a state vs federal matter and Ms Davis polluted that debate with citation of her faith. Why did she do that? She had Kentucky state law on her side. If “Christianity” bothers you in government, try living where I do, other faiths could make the same claim in governance … see my comment to Davidm2575 above.
https://s-media-cache-ak0.pinimg.com/236x/3d/cd/7f/3dcd7f09560532b244d391b1528adbee.jpg
http://www.azquotes.com/picture-quotes/quote-by-maintaining-the-separation-of-church-and-state-the-united-states-has-avoided-the-barry-goldwater-96-43-36.jpg
https://s-media-cache-ak0.pinimg.com/236x/d4/ca/56/d4ca56b36485990321d8c7b4e07b6d46.jpg
https://spydersden.files.wordpress.com/2012/11/reagan.jpg?w=640
http://www.yoism.org/images/GreatAmericans.jpg
davidm2575 …Ms Davis had the option, the legal one, of citing Kentucky state law prohibiting same sex marriage. It would then have been a “state’s rights” case…but she choose on her own to cite her religious faith. Bad choice.
I suspect she was set up and got bad advice to boot…by citing religion she took away the state versus federal issue by default….when traditionally “marriage” has been a state prerogative and only recently (June) became a federal judicial mandate. It could have been a viable case on state’s rights matters…if she’d just cited Kentucky law, regardless of her personal religious disposition.
I’ve said elsewhere that religious positions have no place in carrying our the duties of an elected position. I say that because it is of particular interest to me living in a 90% Muslim neighborhood in a 40+% Muslim community. I think my reasons should be obvious.
My community is fine so long as we don’t allow religious beliefs to interfere with elected office performance. Call me touchy on the subject 🙂
Footnote: I’m Catholic but I don’t insist everyone abide my views. Ms Davis made that mistake.
“…Ms Davis had the option, the legal one, of citing Kentucky state law prohibiting same sex marriage.”
Does that not mean that every county clerk in KY that has performed same sex marriages has broken “the law”?
Aridog – there is no reason that Davis cannot argue the State marriage argument when this fails.
So much for her convictions. She wants out of the lion’s den, she’s no Daniel.
Kentucky Clerk Asks Court To Force Governor To Let Her Deny Gay Marriages
http://www.huffingtonpost.com/entry/kentucky-clerk-asks-court-to-force-governor-to-let-her-deny-gay-marriages_55edc301e4b03784e27637ed
Again, Liberty Council embarrasses the Law profession itself as a whole…
… They seek an ‘exception’ based on religious grounds that Kim Davis shouldn’t have to do her job.
80K a year job and the ‘accommodation’ is to not do her job… 80 thousand tax dollars paid out.
The law profession is an embarrassment without any outside help….
They are a government protected (by lethal force if necessary) monopoly – the antithesis of liberty and freedom while their buds the legislature make laws ever more voluminous, and complex. The legislature took the study of law out of public schools to further ensure the helplessness and dependence of the masses.
Qui bono? The legal monopoly of course.
The law profession is a criminal profession. A group of thugs that believe in a right to cage or kill me if I dare try to engage in their privileged and government protected speech and actions.
What would it say about me if I solicited for my vocation to be a monopoly backed up by government guns? The word embarrassment would be apt.
Dave Champion? Really? Gotta love a non-lawyer, non-CPA who gives tax advise that leads to jail.
Got any videos of Bigfoot? How about some UFO’s?
Annie,
Don’tcha know… When the SCOTUS decides in my favor that means the SCOTUS is practicing good law.
When the SCOTUS decides something I disagree with that means they are practicing bad law.
Geesh… I know I’m slow. LOL
Max, he’s just trying out the ‘Real Christian Nations’s Constitution’ on us, we’re the test subjects. He’s probably trying to see how the majority reacts to such extreme notions.
Well Annie,
As we’re now being taught, the SCOTUS isn’t a body of our Government that should be in the position of determining law… It’s just a high status retirement job for lawyers that play the system well.
Max, LOL, that’s funny but I could see the more liberal religions being trampled upon in a hurry under the Real Christian Nation.
A “real” Christian, a “real” Constitutionalist, a real….fill in the blank.