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
Loving V. Virginia…
… Settled State’s Rights regarding marriage.
https://www.law.cornell.edu/supremecourt/text/388/1
It is, and always will be a states rights issue, this farce will be overturned…again and again…
Annie,
I agree. That video from FOXNews(aka the Mike Huckabee channel) is pure gold.
Thanks for reposting.
http://www.religioustolerance.org/anthony.jpg
http://youtu.be/BEE_ZgcPR-k
http://www.rawstory.com/2015/09/fox-news-panel-concludes-that-kim-davis-lawyer-is-ridiculously-stupid/
Even Fox News….
“Whether the Supreme Court has constitutional authority?” the Fox News host said. “Article III Section 2 of the Constitution gives the Supreme Court constitutional authority to decide constitutional issues!”
“That’s a very polite way of putting it,” Liko replied. “I would say it’s just a ridiculously stupid statement. The Supreme Court does just that, and they determine constitutionality issues, they resolve these kinds of disputes.”
Aridog,
I think comparing this issue to marijuana laws is apples to oranges. I’m aware of no Constitutional violation in a state legalizing marijuana.
As for her being a radical Muslim wanting to execute gays? I think if you substitute “Pentecostal” for “Muslim” you’re pretty close.
Max-1,
Couldn’t tell you for sure… but if he’s martyred I’m sure his 72 virgins will be waiting for him.
Davidm2575 I quote: “Like Warspite astutely observes, the decision of SCOTUS will make it impossible for many with religious convictions to serve in public office”.
I have not the slightest sympathy. For many years Ms. Davis has obeyed a law which has finally been ruled unconstitutional. For years she has violated the 14th amendment of the constitution.
As many Christians know well, a day of reckoning will come. It came on the day of the SC ruling. Ms. Davis, the days that you can discriminate in a public office are over. Get used to it.
Airdog,
Kim is a victim of her own belief system… er, making.
It’s as if she climbed up on that crucifix and nailed herself up on it.
Fiver … how do you feel about marijuana laws out west? Will you defend the locals or the Feds (who offer no protection) when they shut down Denver and Seattle? Or do you think Denver and Seattle, et al., have a local right to self determination? She punked out for 15 minutes. Good luck to her. How’d you like her if she was a radical Muslim convert who advocated execution for gays? Not so much I suspect….
fiver,
What do you think might happen to Rev. Flip Benham should something happen to Federal Court Judge David Bunning… ?
Alicia said …
So people like Kim Davis martyr their careers and livelihoods and sometimes families’ welfare, with no leeway because of their faith.
Yes, she did that….on purpose. No one owes her a “career.” She had other better options, but chose poorly. If anything she ignored her family’s welfare by being stupid. As an elected official she has no right to impose her religious beliefs on her job…especially since they are “latter day” so to speak..e.g., she’s a recent convert and suddenly decides her beliefs trump others’? I am not responsible for that nor is anyone is Kentucky….who pay her. She’s stupid because Kentucky’s populace would have supported her even more if she’d taken a “state’s rights” position. Her religious claim is a distraction…and I suspect intended to be so. Po po pitiful she….
Aridog wrote: “As an elected official she has no right to impose her religious beliefs on her job…especially since they are “latter day” so to speak..e.g., she’s a recent convert and suddenly decides her beliefs trump others’? … She’s stupid because Kentucky’s populace would have supported her even more if she’d taken a “state’s rights” position. Her religious claim is a distraction…and I suspect intended to be so. Po po pitiful she…”
Kim Davis is not being stupid. She has a real conscience problem. It is like forcing a nurse to authorize and assist in performing an abortion when she does not believe in abortions. I am amazed at the number of people who do not understand what the conscience is and how the tradition of law is to accommodate it.
The reason Davis is not arguing State’s rights is because her primary complaint is against the Kentucky governor who has bowed himself to the Supreme Court and ordered his State to allow same sex marriages. Her legal recourse is the State’s RFRA and she seeks to change how licenses are issued by the State in such a way that the State rather than her is endorsing them. She does not want her name and signature on the licenses for same sex marriage.
Following is from one of her appeals:
—-
The Kentucky marriage form uses the word “marriage” at six different places
on the form (not including the reference to “join[ing] together in the state of
matrimony”), twice designates Davis as the person authorizing the marriage license,
and requires the stamping of her name (“KIM DAVIS”) and endorsement on the
proposed union. See KY. REV. STAT. § 402.100(3); see also VTC, Exs. A, D. Unlike
other governmental licensing or registration schemes that Kentucky provides (e.g.,
driver’s licenses, fishing and hunting licenses, motor vehicle registration, voter
registration), the issuance of a marriage license requires an individual person (Davis)
to authorize a particular relationship between persons against her religious
convictions. As it currently stands, Davis’ name and approval cannot be divorced
from a SSM license. Thus, pursuant to Gov. Beshear’s SSM Mandate, Davis is being
told to validate and affirm on the prescribed KDLA form a view that violates her
religious beliefs. See Wooley, 430 U.S. at 707. For Gov. Beshear to state that
Kentucky is issuing and recognizing SSM licenses is one thing. But commanding
Davis to be an “instrument” for a message, view, and proposed union that she finds
“morally objectionable” is altogether different, and violates not only her conscience,
but also her free speech rights. See id.
—-
So why can’t a State marriage license be issued like a driver’s license? Why is the name and signature of Kim Davis required? This is a very minor accommodation for her religious faith.
The truth is that the homosexual activists hate her and want her to lose her job, to punish her for being a Christian who believes homosexuality is an abomination. It looks like they have a lot of people are foolishly joining forces with these homosexual hatemongers.
Kentucky law prohibiting same sex marriage provides no protection for Davis. That law was held unconstitutional. “The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.” Obergefell v. Hodges (2015) 576 U.S. ___ , at 27.
“One person’s religion is another’s hostile theocracy.”
= = =
Yet, enforced by…
= = =
“Islam demands full compliance of a populace, not tolerance…”
OK I get it… the only religion for America is Christianity.
Because even Jesus being for the separation of Church and State isn’t good enough…
Again, why fear Islam when you seek to be enslaved by Christianity?
One person’s religion is another’s hostile theocracy. And we no longer have to look across oceans to find a theocratic religion hostile to the government of the United States of America, because we have encouraged massive immigration of Muslims. Islam demands full compliance of a populace, not tolerance; it’s just a matter of time for us.
There is a strong streak of materialism in Christianity, and the consequence is literal interpretation and obedience to the Bible. Even among Jews, adherence to the Law first laid down in the Torah requires literal obedience and an antiquated set of customs. So people like Kim Davis martyr their careers and livelihoods and sometimes families’ welfare, with no leeway because of their faith.
That being said, I personally hold the majority Justices on this issue at the Supreme Court in contempt of the Constitution and reality. Woo-hoo. That and several dollars will get me a fancy drink at Starbucks.
https://twitter.com/GarrettWKYT/status/640979093257854978
Aridog
It’s Labor Day and I got no pay for my time off like Kimmy D. does…
Federal Court Judge to be Held in Contempt September 7, 2015
http://www.christiannewswire.com/news/3601176655.html
Ready the pitchforks and torches Felicia…
http://i.imgur.com/DwaKp5I.gif
Annie … sorry, my positive remark to Max-1 was on the “flight attendant” thread, not this one. Give us old guys a break will ya’?