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 hypocrisy is deafening as the Mayor of Dan Francisco Gavin Newsome issued over 6000 marriage licenses to gay and lesbian couples, when it was illegal to do so.
Was he put in jail without bail? Heck No!
A incarcerated Muslim man wanted to keep his beard in prison because of religious beliefs and the left went nuts to fight for that right on his behalf.
We currently have a Muslim Flight Attendant whom wants to be able to wear her hajib on her job. She is suing the airline for that right.
Again, when it fits the liberal agenda ie Gay/Lesbian rights or Muslim religious rights, their right there with their propaganda media partners to support those that fit their agenda and demonize those whom don’t. You can’t have it both ways, unless your a democrat.
DavidM2575 .. I am not really trying to argue with you or the others here who favor religious freedom. I favor it too, but not in government office if the legislated actions encourage an elected official to enforce their personal faith on others. It simply is NOT their choice to make. If they are deeply concerned they can resign, as Po cited in a job he left. Elected positions are not entitlements. I’ve repeatedly told why I feel this way due to where I live, but it is applicable anywhere to any faith. You said later:
A plain reading of the Constitution makes it clear that the federal government has no power to define or regulate marriage. That authority rests with the States and the people.
I agree completely, with the caveat that the state also abide the constitutional protections (no 3/5ths nonsense, et al.) …and THAT is why she should have cited state law as state legislated, not personal religious reasons. Yes, the SCOTUS makes mistakes but some minor subaltern won’t effect any over-ruling. She would certainly have as much or more support had she just cited Kentucky state law. I also agree with Nick that radical LGBT activists always try to make ordinary freedoms extraordinary (special?), given their personal views, and I consider that to be the same thing, in essence, as what Ms Davis has done. I want NONE of it. I want elected officials to carry out their duties under their legislated laws…and if they seek to change those laws, do so within the legislature of merit, local, state or federal…not by mere personal edict based upon a personal religious, or secular, viewpoint. When makes an issue all about just themselves, they muddy the issue and exclude the rest of us as represented.
I’ve said repeatedly that I do NOT favor ANY personal religious influence, or exclusionary secular influence, in the carrying out of elected duties that are clearly defined, which they are in Ms Davis’ case. Demanding “exceptions” for one person’s personal beliefs in execution of the law as written is not the right choice…it simply “kicks the can down the road.” It is a very slippery slope, because if one personally faith directed individual can do it, so can many others, with perhaps more radical positions, and some of those concepts would be anathema to civil liberty. We are entitled to “freedom of religion” on a personal level but the argument that we must abide elected officials making it about “not from” personal religion is spurious when it purports to be “from” government as a similar right to “of”…I don’t see how this is so hard to understand.
Gawd I am I tired of my own redundancy and I will never understand why my ideas are seen as so discriminatory…I want no discrimination that is not supported by law (such as those requiring background checks for firearms…which need tune ups in a majority of states…as Annie’s cited map demonstrated earlier…and I am a “gun guy” and NRA member) by elected officials at any level…including the POTUS…who lately seems to inject his personal beliefs at will and dang the law of the land. He’s not the first to do so, but he should be the last.
Where I live I’ve voted for Muslims on occasion when their performance merits earned it, but I certainly don’t want them to suddenly decide to impose their faith on the rest of us here, even piecemeal…some 60% of us are non-Muslim. Beyond that I have not found so far any of my Muslim neighbors who disagree with me. As refugees for the most part they’ve already faced religion oriented governance. They seem to prefer here for good reason.
Aridog wrote: “I favor it too, but not in government office if the legislated actions encourage an elected official to enforce their personal faith on others. It simply is NOT their choice to make. If they are deeply concerned they can resign…”
I do not see Kim Davis as trying to force her convictions upon others. She is asking the State not to force her to put her imprimatur on same sex marriage.
If I remember correctly, you have a military background, maybe in Vietnam. Suppose your commander ordered you to pillage a village and kill the women and children in order to leave no witnesses. Technically, the order of command is such that it appears to be a lawful order coming from a superior officer. However, your conscience might have a problem with obeying that order. Do you think the proper recourse is simply to quit being a soldier? I don’t think so. You should stand upon the principle of your conscience that the order is unconscionable and therefore it is an unlawful order that cannot be followed.
Kim Davis is doing something similar. The governor is a coward to order his agents to obey the Supreme Court but then not get involved when conscientious objections are made by some of his agents. There is no rational reason why Kim Davis must lose her job over this. The State needs to change the way that it issues licenses so that a religious person does not have to put their name and imprimatur on an immoral governmental order. If the State is not accommodating this, then the religious freedom is lost by everyone. That is not a good thing. Religious freedom is a cornerstone of Constitutional liberty. You can’t trade the right of hedonists to put their penis where it doesn’t belong for the right of religiously moral people to live wholesome, moral, and holy lives. The rights of the hedonists do not trump the rights of the religious.
Lisa N
“The conundrum of Kim Davis is she is an Evangelical Christian Democrat . . . ”
= = =
… Supported by a cadre of spotty GOP types with nearly a Dem in sight of her cell.
You know that Gov, Mike Huckabee (R) is throwing Kimmy D. a Political Party today?
Lisa N.
I’ll see your Madonna’s gay son FB post with an article from Kareem Abdul-Jabbar (a published author).
Kim Davis Is Not a Patriot
http://time.com/4024556/kareem-abdul-jabbar-kim-davis/
Thanks for the response, Lisa. In retrospect, duh. This was an interesting thread… I think Aridog had the most concise comment about the way it was done… If she had cited Kentucky law instead of her religion, it would have been a great case for states powers.
Then DavidM points out she didn’t do this specifically because it was so abhorrent to her as a religious person it was her immediate reaction of conscience. This seems more likely to me- that she had a legitimate conscience problem, so she didn’t even think about what argument would be the best outcome for rule of law. Hers was a kind of emotional response. Understandably, some people cannot come to grips with others lifestyles, and do not think clearly.
I saw a comment somewhere about States can’t make laws that violate the constitution. Ha! Try exercising your right to keep and bear arms in the People’s Republik of NY NJ! All this talk over a ‘civil’ right that is not listed in the constitution. Now, our RKBA is explicitly listed as to ‘not be infringed’, and anyone who can read English can go to dictionary.com and figure it out if that last word is unclear to them.
I would that this fervor shall be over government overreach, like it should be.
I do not understand the incredible short-sightedness of the Liberal/Left in this matter. If one treats the Obergefell decision for what it is, a promulgation of law, it fails to pass the oft-cited Lemon Test from 1971:
1) the legislature must have adopted the law with a neutral or non-religious purpose
2) the statute’s principle or primary effect must be one that neither advances nor inhibits religion
3) the statute must not result in any excessive entanglement of government with religion
I cannot get inside the heads of the SCOTUS, but if you give them a pass on #1, the new “law” arguably does not pass Constitutional muster under prongs 2 & 3. With regard to whether an opinion from the SCt in this case is a law or just a decision invalidating any laws to the contrary, that seems a distinction without a difference. That sort of argument works beautifully in a narrow legalistic analysis, but in the actual real-life world it sounds like rather insincere BS.
One could argue, “Didn’t ending slavery inhibit some folks’ religious beliefs?”, but I do not think that works for three reasons. First, a societal consensus had been reached (with the help of a Civil War) regarding getting rid of slavery. Second, slavery in the U.S. was a peculiar institution, it was race based. The only Biblical support for that is exegesis that I am not sure I really get (nor did many clergymen at the time). Third, and most important of all, slavery was changed via a Constitutional amendment, not a Supreme Court decision.
Maybe it is my suggestion on Lemon that sounds too legalistic. Plus, what about when the SCt reversed Hardwicke, or struck down miscegenation laws? Were there not religious elements in that? I think the difference is there is not now, in my opinion, a societal consensus on gay marriage. The Court is far ahead of public opinion & is thus deeply involved with promulgating and issuing “policy”. Given the only way to supersede Obegefell is by the Court reversing itself or a Constitutional Amendment, the Court has imposed upon the Country a set of moral (and religious) beliefs different than those to which most Americans adhere. And I’m not really sure the Country ever would have moved to the position now fixed in law by the Court.
Given the overall circumstances, I am not comfortable with this level of judicial activism. This issue should have been resolved via the Legislative or Executive Branches, checked & balanced by the Court. It is not just Conservatives or “nutty” religious people (query: will that include Muslims as nutty?) who should be taken aback by the extreme nature of Obergefell.
Kentucky Guv Won’t Respond To Kim Davis’ Latest Motion To Leave Jail
http://talkingpointsmemo.com/livewire/steve-beshear-kim-davis-motion-jail
MaDonna’s gay brother defends Kim Davis and he makes a lot of sense. He recognizes the hypocrisy of left as well.
Christopher Ciccone, the openly gay brother of pop star Madonna, has defended Kim Davis, the Kentucky country clerk who is in jail for not issuing marriage licenses to same-sex couples, according to The Hollywood Reporter.
“Once again, the gay community feels the need to be sore winners,” Ciccone reportedly wrote on his Facebook page. “Is it so difficult to allow this women her religion? Or must we destroy her in order for her to betray her faith. No matter how we judge, it’s truth. The rights we have all fought for, mean nothing, if we deny her hers.”
Ciccone admitted that Davis is required to follow federal law, but asked why she should do so when the U.S. Justice Department and other civil authorities don’t follow federal laws they oppose. He cited Washington State and Colorado for legalizing marijuana or places such as San Francisco that have become “sanctuary cities” and don’t turn illegal aliens over to immigration agents.
“I always thought that sanctuary was the province of churches,” Ciccone wrote.
If someone wants to overrule this or any other Supreme Court, decision, attempt to pass a constitutional amendment(unless it was statutory interpretation). The Supreme Court is the part of government that is the best qualified to decide the constitutionality of government actions. The legislative branch, is institutionally incapable of making final constitutional judgements in legal cases. They are supposed to be appropriating money, considering making laws, executive branch oversight etc. The executive branch administers agencies and has almost all federal law enforcement power. To say nothing of the military. It has to much power, and a conflict of interest, to be the final judge on the constitutionality of it’s actions. That leaves the Supreme Court, with it’s nine members, essentially appointed for life,(so they won’t get crushed by the political branches) left with the duty. The Supreme Court has no dog in the races (elections) so it concentrates on deciding constitutional and statute interpretation which inevitably leads to making “law”. It is impossible, for instance, to decide McDonald vs The City of Chicago, to no take law when you hold that there is an individual right to have a firearm in your house in within a state. Now everyone knows that the 2nd amendment applies to personal gun ownership. The country remains stable because there is an institution that has as it sole job to make those kind of calls. The people accept it and move on, or they can push for a constitutional amendment. Just like this gay marriage decision.
Actually, Davidm, the SCOTUS can determine that laws are unconstitutional as applied OR on their face (i.e., as written).
Kim wrote: “… the SCOTUS can determine that laws are unconstitutional as applied OR on their face (i.e., as written).”
Of course they can, and should. It is the duty of the Supreme Court to determine constitutional issues. However, sometimes the court gets it wrong, as they did in the Dred Scott decision where they ruled that neither Scott nor anyone of African descent could claim citizenship in the United States. Therefore, the Supreme Court ruled that Scott could not bring any suit in federal court because he was not a citizen as a result of his African ancestry. They also ruled the Missouri Compromise unconstitutional because it would deprive slave owners of their right to their property. The court’s bad decision hastened the American Civil War because people lost respect for the federal government. It took the War followed by the 13th, 14th, and 15th Amendments to nullify the Supreme Court’s bad decision.
A plain reading of the Constitution makes it clear that the federal government has no power to define or regulate marriage. That authority rests with the States and the people. This same Robert’s Court in the Windsor decision affirmed this principle in the following manner:
Opinion here written by Kennedy, the same Justice who wrote the opinion in Obergefell.
From United States v. Windsor 570 US 2013:
—-
The recognition of civil marriages is central to state domestic relations law applicable to its residents and citizens. See Williams v. North Carolina, 317 U. S. 287, 298 (1942) (“Each state as a sovereign has a rightful and legitimate concern in the marital status of persons domiciled within its borders”). The definition of marriage is the foundation of the State’s broader authority to regulate the subject of domestic relations with respect to the “[p]rotection of offspring, property interests, and the enforcement of marital responsibilities.” Ibid. “[T]he states, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce . . . [and] the Constitution delegated no authority to the Government of the United States on the subject of marriage and divorce.” Haddock v. Haddock, 201 U. S. 562, 575 (1906) ; see also In re Burrus, 136 U. S. 586 –594 (1890) (“The whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States”).
Consistent with this allocation of authority, the Federal Government, through our history, has deferred to state-law policy decisions with respect to domestic relations. In De Sylva v. Ballentine, 351 U. S. 570 (1956) , for example, the Court held that, “[t]o decide who is the widow or widower of a deceased author, or who are his executors or next of kin,” under the Copyright Act “requires a reference to the law of the State which created those legal relationships” because “there is no federal law of domestic relations.” Id., at 580. In order to respect this principle, the federal courts, as a general rule, do not adjudicate issues of marital status even when there might otherwise be a basis for federal jurisdiction. See Ankenbrandt v. Richards, 504 U. S. 689, 703 (1992) . Federal courts will not hear divorce and custody cases even if they arise in diversity because of “the virtually exclusive primacy . . . of the States in the regulation of domestic relations.” Id., at 714 (Blackmun, J., concurring in judgment).
The significance of state responsibilities for the definition and regulation of marriage dates to the Nation’s beginning; for “when the Constitution was adopted the common understanding was that the domestic relations of husband and wife and parent and child were matters reserved to the States.” Ohio ex rel. Popovici v. Agler, 280 U. S. 379 –384 (1930). Marriage laws vary in some respects from State to State. For example, the required minimum age is 16 in Vermont, but only 13 in New Hampshire. Compare Vt. Stat. Ann., Tit. 18, §5142 (2012), with N. H. Rev. Stat. Ann. §457:4 (West Supp. 2012). Likewise the permissible degree of consanguinity can vary (most States permit first cousins to marry, but a handful—such as Iowa and Washington, see Iowa Code §595.19 (2009); Wash. Rev. Code §26.04.020 (2012)—prohibit the practice). But these rules are in every event consistent within each State.
… DOMA, because of its reach and extent, departs from this history and tradition of reliance on state law to define marriage.
—-
http://www.oyez.org/cases/2010-2019/2012/2012_12_307
Something is clearly irrational by these aging Justices when they express so clearly the powers delegated to the States, then they usurp that power for themselves in Obergefell just a few years later.
The conundrum of Kim Davis is she is an Evangelical Christian Democrat . . . I wonder how many democratic voters will be pissed about this in the tri-state area of Kentucky-Ohio-Indiana. I’m from Ohio and I can tell you, this has angered a lot of people. They do call it “The Bible Belt”. I think the democratic nominee for their parties primary is in for an embarrassing loss. Politically, this is a bust for Dems.
@DavidM – “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.”
I totally agree. Again the judicial branch follows the lead of the executive branch to take the power of making laws away from the legislative branch.
Something must be done or JT will lose his case on who controls the purse and whether that purse is legal or not. Right now, I see no hope, even though it’s Un-Constitutional to take money out of a non-congressionally approved account. This is why we need a Article 5 convention.
David, Your comments are superb. It’s too bad JT can’t put aside his politics and actually have an intelligent, conservative weekend blogger. You would be an asset to this blog. Hell, there are weekend bloggers who NEVER post anything.
Help Help My comments are being swallowed.
I especially enjoy how the Huckster referred to the Dredd Scott ruling as a bad Judicial ruling declaring certain humans to be worth 3/5ths while defending his view that LGBT people should be kept 3/5ths equal.
Touching…
Huckabee… Liberals get to choose which laws to support.
Give that man his own cheese plate. He’s got more whine than a vineyard…
https://www.youtube.com/watch?v=rBOatQ5XuLo
p.s.
That man thinks he can be president…
Just because someone posts anonymously does not make that person a troll.
It’s time for Jonathan Turley to shut down this ugly troll-talk. (Examples: Comments by Nick Spinelli @ 6:44 and 6:37 pm)
What happened to the civility rules?
Nick Spinelli
1, September 7, 2015 at 6:37 pm
My grandma loved professional wrestling. Her favorite tag team was Dick the Bruiser and The Crusher. They were much more entertaining and intelligent than our current troll tag team.
_______
Why anyone would allow this nonsense is quite beyond me.
Again Nick,
Why make comments like the above when: A) they’re off topic and B) they’re meant to inflame a reaction from other posters?
TROLL
Digital Technology, Informal.
a) to post inflammatory or inappropriate messages or comments on (the Internet, especially a message board) for the purpose of upsetting other users and provoking a response.
b) to upset or provoke (other users) by posting such messages or comments.
Honey, you are that troll…