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
Max-1 … you’re on a roll today!
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Annie … by “cute” I meant I found them enjoyable and appropriate. I meant no insult. I thought my remark to Max-1 made that clear. Then you said:
How could she cite state law, when the state laws were deemed unconstitutional? Am I wrong?
Yes, you are wrong…the state law still stands inside the state and the federal judicial over-ruling was only last June. Federal law has prohibited marijuana for quite a while, but states have abrogated that in theory. A real challenge is due. She should have cited the state law, even if she lost. On the other hand, she might have won. “Marriage” has a much longer states’ rights history than weed. She chose the easy route to her 15 minutes, and that’s too bad. That and I have no truck with anyone who cites religious beliefs as justification for ignoring elected office duties. Period. I’ve explained why above vis a vis my community. It is just too dangerous a slope to try. This state versus federal issue is not settled law…think Denver Co or Seattle WA and marijuana. A new administration could make the marijuana issues painful for those cities. I for one don’t think marijuana should be legal unless Congress legislates it so…but my ideas are biased by experience with the trade, so to speak…long ago. Not proud of it.
forgotwhoiam
A David and Goliath…
= = =
“Render unto Caesar that which is your Christ…”
Yea, that’s how it went.
“… after that and is now a 2 troll vomitorium.”
= = =
That explains why it’s just you and I.
There is nothing worse then someone in a position of control who is incompetent — dictatorial and who is incapable of reason.
Start w/Washington — why not the White House — congress — IRS –Justice Dept. — the FBI and CIA — the states — counties — cities — banks — Wall Street.
I`ll bet one could develop develop enough material on incompetent people to write a huge book about pig headed people.
( my apologies to the pig who I consider very intelligent)
Davis is absolutely a hero.
Davis is David vs. Goliath as the Supreme Court.
Davis is supporting the very Constitution that the Supreme Court is nullifying per its ideological agenda.
Davis knows, as we all do, that the founding documents were not written to advance the perversion of nature, to assign superior and different rights based on idiosyncrasies and characteristics or to overturn the dominion of the majority. The founding documents were written to establish a government that is unbiased, neutral, objective, logical and rational.
Davis knows that America is lawless with executive and judicial branches in “overreach” bringing America to this constitutional “tipping point.” Davis knows that corrective action is the duty of the legislative branch and that the representative of the sovereign in America, Congress, is in a stupor of dereliction and negligence.
Davis knows that without constitutional “checks and balances,” strictly imposed by Congress through impeachment, the judicial branch will “legislate from the bench” its own coronation.
Davis knows that continued subjugation of America by perversion and economic parasitism, both socially and economically, cannot be a good thing.
Davis knows that ONLY the People legislate through their Congress,
and that the executive and judicial branches SHALL NOT legislate
or otherwise usurp the power of the People.
https://www.law.cornell.edu/wex/supremacy_clause
“Article VI, Paragraph 2 of the Constitution is commonly referred to as the Supremacy Clause. It establishes that the federal constitution and federal law generally, take precedence over state laws, and even state constitutions.”
“And yet it gets shoved down our throats… ”
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STOP THE OBSESSIONS OF YOUR ORAL FIXATIONS!
http://www.theatlantic.com/politics/archive/2015/07/nullification-again/397373/
“The Supreme Court’s decision last week did make gay marriage legal around the nation. Unfortunately for social conservatives, it did not, however, make nullification legal around the nation.
Nullification is the historical idea that states can ignore federal laws, or pass laws that supersede them. This concept has a long but not especially honorable pedigree in U.S. history. Its origins date back to antebellum America, where Southern states tried to nullify tariffs and Northern states tried to nullify fugitive-slave laws. In the 1950s, after Brown v. Board of Education, some Southern states tried to pass laws to avoid integrating schools. It didn’t work, because nullification is not constitutional.”
“Well meaning gay people never needed this foolishness… ”
= = =
… For they know their place on the
plantationer…Buser…Lunch Counter. No I know, they’ll know their place when we force them up against a STONEWALL.Like that?
I also find it amusing that the “cultural diversity” advocates that prattle on about how “westerners” need to appreciate other cultures, don’t appreciate how homosexuality remains taboo outside the white west. Don’t you liberals “appreciate” the “diversity” of Africans that universally revile it, or the “diversity” of a billion Muslims that revile it, or the “Diversity” and “multiculturalism” of the billion Chinese that revile it?
And yet it gets shoved down our throats unwilling, as the “silent majority” gets turned out by its pimps and big federal warden again.
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Lets skip the Christianity BS and go back to the pagan Greeks. Even though they were tolerant of homosexuality, they did not elevate it into a coequal ideal of citizenship. It was condemned by Plato.
Treating homosexuals humanely is just. Allowing their orientation to subvert the ideal of the nuclear family that has been at the root of 4,000 years of civilization in the West (gee, actually worldwide) is foolish and wrong.
But the plutocrats like it because it further divides all resistance. Individualism is the weaponized ideology of liberalism that undermines all group opposition to the capitalists, whether it came from older class rivals like the aristocracy, or newer class rivals like the workers; or other sources like religion or family or culture or ethnicity or even nationalism.
In this regard, American liberal capitalism is the destroyer of all culture beyond the false god of “individualism” that wipes out all differences held at a level any higher than what one person can sustain.
The irony is that the “discredited” evil systems of the early twentieth century, fascism and bolshevism, both understood this about capitalism clearly// but with victory in WWII and the Cold War, as Fukuyama said, it seemed that all other alternatives were “discredited,” ushering a new era of peace and prosperity… LOL not.
Federalism in this country is a dead letter. The states are mere appendages. We might as well convert the states to departments.
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The democratic will of the people in the US flaunted and metaphorically sodomized by the judicial decision innovating the new right to socalled gay marriage. It affects a trivial part of the population but generates tons of heat and activity. It’s another phony “social issue” was generated to divide and disorient the people to distract them from opposition to the plutocracy.
The gay lobby are the clever but willing thugs who have served willingly in this charade perpetrated by the blackrobed lifetime tenure unelected legislators oops I mean article III judges.
Well meaning gay people never needed this foolishness and they have been taken into the service of social disorder and atomization, by their own cupidity.
Anni,
Don’tcha knows? Any time the SCOTUS rules against a State’s Constitution finding it unconstitutional it is an act of “Judicial Activism” from the Bench and is readily deemed illegal, however should that same SCOTUS rule in favor of any State’s Constitution than that is lawful.