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
Regardless of whether Annie and many others think Ms. Davis should resign, that will not happen. In addition to jeopardizing Standing (why make it easy to boot your case?), she has either been chosen or adopted to test the effects of the SCOTUS decision. No matter what anyone from the West Coast, NY, DC, etc., etc., thinks, the folks where she holds office will not try and remove her. Ms. Davis has virtual 100% support of her constituents unless she starts getting too big for her britches.
Folks in places like Rowan County don’t like when someone forgets where they come from. As long as Ms. Davis doesn’t start staying in suites at the Pierre or Peninsula, flying first class, using limos, etc., she will be fine with her folks in Kentucky. But, if she starts getting a big head those same people will turn on her in a New York minute (as they say in the Bluegrass state).
The best way for liberals to quickly undermine her is through carefully lionizing her. If the Left treats her as a folk hero and starts enriching her ($$) through Hollywood, she would lose her credibility in Rowan County. By spewing hatred and adopting elitist attitudes all you do is increase her support. You want to get rid of her, use your brain. One party (with lots of pics!) put on by George Soros at Babs Streisand’s digs and Ms. Davis will be history.
And, why is Nick being so nice to me? Whether nice to me or not, his comments about issues are usually well thought out and clearly stated. He also seems to have immense patience.
So it seems that the marriage licenses issued in Davis’ absence had the signature of the deputy who issued it. Davis isn’t satisfied with that and her lawyer states those licenses are not valid. What more does this religious bigot want? If she continues to thwart the issuance of the licenses she should have the book thrown at her. This is nothing more than using religion to legitimize bigotry. I actually felt pity for her sitting in jail, but with this willful disregard of others’ Constitutional right as spelled out in the Fourteenth Amendment she deserves what she gets.
OMG. What a theatrical production when introducing Kim Davis to the crowd. We now have veered into the Twilight Zone. It would be hilarious if it weren’t so disturbing.
Davidm2575 said ..
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 seem to totally misunderstand the US military. Such an “order” regardless of the command is n-e-v-e-r lawful. A Soldier or Marine is bound to disobey unlawful orders, and any such order must be resisted. See the story of WO Hugh Thompson regarding the My Lai massacre. He did not quit, he stood up and stopped the slaughter….aiming weapons at misguided soldiers in the process. That was what his duty called for and he carried it out.
That and the last time I checked, a soldier is not elected. I was enlisted (RA6805XXXX), not drafted, so conscientious objector status was not available to me…my duty was to resist unlawful orders, period. I did agree and swear to that stipulation.
Footnote: The policies of Robert (Blowtorch Bob) Komer were nearly akin to what you suggested…and they assured we’d be hated by those he interned in his “Strategic Hamlets” after demolishing their villages and killing who knows? Not enough of us resisted his insanity. Hard to resist the White House, eh? 30 April 1975 was the end result.
Aridog wrote: “You seem to totally misunderstand the US military. Such an “order” regardless of the command is n-e-v-e-r lawful. A Soldier or Marine is bound to disobey unlawful orders, and any such order must be resisted.”
Actually, I think I understand very well. What you are saying is exactly my point. I know that in the military you are trained to understand what unlawful orders are because sometimes they happen. You are taught the principle of the chain of command, and that orders that come from higher ranking officers are to be obeyed. However, you are not to obey commands blindly. When a command is contrary to the Constitution, or the command is unconscionable, as in this example with pillaging a village, you are to consider the command unlawful.
Because of your training, you immediately know that such an order is unlawful. But why is it unlawful? What is the legal philosophy behind understanding when laws are lawful or unlawful? The Nazi’s excused the atrocities they committed by saying that they were following orders from up the chain of command. Is that a valid excuse? No. While the principle of law is that lower authority must follow the orders of higher authority, whenever that higher authority acts contrary to the Constitution (or the Monarch in a monarchical form of government), acts contrary to a higher law or higher authority, or if they attempt to force you to act contrary to your conscience, then their order is unlawful.
Kim Davis is exactly in this situation. While she is not being ordered to pillage a town, she is being asked to behave in an immoral way according to her conscience. She cannot in good faith put her personal imprimatur to sanctify and approve of same sex couples marrying. The question concerns whether the order by the federal judge is lawful, and whether the decision by the Supreme Court is lawful. For many people, because the Supreme Court is the highest authority on the Constitution, that settles the question for them. They think that people should blindly follow authority and that is the only way to keep order. But that is fallacious thinking as is obvious by your response to the example of an unlawful order given by a military commander. We are to do what is morally right, even when the highest authority in the land orders us to do otherwise.
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If she, as she says, “will not violate her conscience” and prohibits her deputies from issuing the marriage licenses, I suspect she will be back in jail for contempt of court post haste. The Judge told her NOT to interfere with her deputies issuing the licenses. She actually seems to have gotten an accomodation in that she herself will not be required to issue the licenses. What more does she want?
She has broken her oath of office and should either resign or remain in jail until she either resigns or issues the licenses. Here are my reasons why I believe this.
Is the “right” of association, the “right” of self ownership to do with your own body as you see fit, the “right” of cohabitation/ joint property ownership, to have rights equal to your neighbors and the “right” to contract at issue here? Perhaps even more rights could be included. Call them what you may.
I see a specific case where they state has erroneously defined marriage and are erroneously issuing marriage licenses when they are not constitutionally authorized to do so. I see no where in the Constitution where the state can usurp the above noted rights and Amendment IX and others surely protects them. I see no where in the Constitution where Marriage licenses are to be issued by the State.
The General Welfare clause? Show me the evidence that a state issued marriage license does more good than harm under our Constitutional Republic. More importantly on this issue, what are the specific criteria that must be met in which the State may usurp an individual right for the benefit(s) of the common good?
In fact, when a legislature enacts and the court concurs, they seldom show adequate empirical evidence that the enactment really does provide what is in the best interest of the majority. And what we often find in hindsight, is that someone is often times trying to obtain privileges/benefits at the expense of everyone else.
The fact is that married couple get benefits gay couples do not get and the state has been complicit in the denial of the above rights and benefits. That religion has affected our political system despite the protection of individual rights under the Amendments.
As government was with the Salem witch hunts and the fugitive slave laws. For those Lincoln fans, it was the same Republicans who pushed the south into war through various means that enacted the fugitive Slave Laws.
Skip, you are way off base here. Let me try and address some of your issues.
Skip wrote: “She has broken her oath of office and should either resign or remain in jail until she either resigns or issues the licenses.”
She has not broken her oath of office. Her oath is to uphold the Constitution. The Supreme Court has caused confusion on this issue by declaring that the Constitution defines a right for same sex couples to marry. It doesn’t. The homophiles on the court have lied and presented an irrational argument to change society. Read the four dissents to their opinion.
Skip wrote: Is the “right” of association, the “right” of self ownership to do with your own body as you see fit, the “right” of cohabitation/ joint property ownership, to have rights equal to your neighbors and the “right” to contract at issue here?”
Yes, these rights do exist for same sex couples, but marriage is not described by these rights. Marriage is more than a contract. It defines new relationships that exist from coitus and reproduction, none of which applies to same sex couples.
Skip wrote: “I see a specific case where they state has erroneously defined marriage and are erroneously issuing marriage licenses when they are not constitutionally authorized to do so. I see no where in the Constitution where the state can usurp the above noted rights and Amendment IX and others surely protects them. I see no where in the Constitution where Marriage licenses are to be issued by the State.”
The Constitution does not enumerate State powers. It enumerates the powers of the federal government, and any power not delegated to the federal government remains powers of the States and the people. Therefore, because the Constitution does not say anything about marriage, that power remains with the people and the State governments.
Skip wrote: “The fact is that married couple get benefits gay couples do not get… ”
Married opposite sex couples should get benefits that same sex couples do not not. This is because opposite sex unions typically results in children, and when that bond between the couple is solidified by the institution of marriage, it is better for society as a whole. It results in children who are not being raised fatherless, and a family structure that is the foundation of civilized society. Same sex unions do not do any of that. Coitus is impossible in a same sex union, and reproduction is impossible, which is why we say that sexual relations in a same sex couple is perverted and contrary to nature.
You said:
“Yes, these rights do exist for same sex couples, but marriage is not described by these rights. Marriage is more than a contract. It defines new relationships that exist from coitus and reproduction, none of which applies to same sex couples.”
A portion of a marriage contract should relate to both coitus and reproduction if that is what they are doing, and if it a good contract. Marriage is a contract, period. It is an agreement of how two or more people are going to live together. It may or may not relate to sex which in reality is nobody else’s business.
The State has no more right to take away an inalienable right than does the Federal Government and the Federal Government is suppose to protect us when the State does. They are to busy taking away our rights to even pay attention to what the local and state government are doing. Actually, why would they want to stop a State from taking way a right they are also doing. The Income Tax is an example.
We’ve allow the usurpation of rights by all levels of government and we are paying the price for it today.
You just don’t want to except the fact that government is first and foremost a confiscatory cartel and for those want to be a par to the theft, it is also a protection racket. The State should not be involved in marriage licensing. The must take away our rights and property to be able to dole it out to the bureaucracy, big business and the individual welfare system. From licensing fees to the inheritance tax, it’s just one big confiscation that has bankrupted our middle class.
Don’t you feel sad for how poor the people in Congress and the Obama Administration are?
You said:
“Married opposite sex couples should get benefits that same sex couples do not. This is because opposite sex unions typically results in children, and when that bond between the couple is solidified by the institution of marriage, it is better for society as a whole. It results in children who are not being raised fatherless, and a family structure that is the foundation of civilized society. Same sex unions do not do any of that. Coitus is impossible in a same sex union, and reproduction is impossible, which is why we say that sexual relations in a same sex couple is perverted and contrary to nature.”
Everyone knows the wrong people, the poor are having children they cannot afford, yet still are having them because we have stupidly created laws that provide benefits for being irresponsible. There are enough people on the planet don’t you think.
What I think is perverted is to force people who choose to be responsible by not having children to pay for those that are irresponsible.
Recent NY Times comment:
“BobN Italy 1 minute ago
Ms. Davis’ mother was the county clerk in Rowan County for 37 years, during 26 of which Ms. Davis was a deputy clerk. Now Ms. Davis’ son is one of her deputies. If she really puts her religious beliefs ahead of her job (which is completely reasonable), she should abdicate um er resign.”
Ah, their own little fiefdom. Until now. 🙂
“The rights of the hedonists do not trump the rights of the religious.”
Ah, yes. It’s the hedonists vs. the religious. Gotta laugh.
Max, The First Amendment Defense Act sounds like The Shred the Constitution Act.
Davis is going to have to relent and allow her deputies to continue to issue marriage licenses with her stamped signature, it seems. I’m glad she’s free and I hope when she gets back to her job she performs her duties in the way that upholds the Constitution, as she swore an oath to do.
Because I mentioned the cowardice of Governor Beshear, let me not leave out Justice Kagan. Justice Kagan is one of the Justices who has officiated over gay marriages yet did not recuse herself from the Obergefell case. She voted in favor of forcing the States to change their definition of marriage. So the attorneys for Kim Davis write an appeal to her concerning the conscientious objection of this clerk, and Justice Kagan ignores it? Yeah, I would say Justice Kagan is a coward too. If you are going to vote to upset the status quo and change the laws of every State in the nation, you should at least have to courage to deal with the fallout caused by your actions.
Here’s how the appeal starts out:
—–
To the Honorable Elena Kagan, Associate Justice of the Supreme Court of the United States
and Circuit Justice for the United States Court of Appeals for the Sixth Circuit:
Applicant Kim Davis (“Applicant” or “Davis”) respectfully applies for an emergency stay
pending appeal of a preliminary injunction order entered by the United States District Court for
the Eastern District of Kentucky on August 12, 2015 (hereinafter the “Injunction”) (attached hereto
as Appendix “A”). That Injunction enjoins Davis, the County Clerk for Rowan County, Kentucky,
to issue by her authorization and under her name (not the State) marriage licenses to the four
couples (including two same-sex couples) in this lawsuit, in derogation of her religious liberty and
conscience that dictate to Davis that same-sex unions are not and cannot be “marriage.” App. A.
Similar requests for a stay have been denied by both the district court and the Sixth Circuit. App.
B-D. The temporary stay of the Injunction entered by the district court expires on Monday, August
31, 2015. App. C.
—–
https://www.liberty.edu/media/9980/attachments/2015/082815_Application_to_Stay_Order_Pending_Appeal.pdf
How does a p*ss ant from nowhere raise such a raucous?
Ari, You and I were typing the same thoughts @ the same time.
LisaN, The left STOMPS out dissent. The dissent that they are most vicious stomping is from within the ranks. Talk w/ mainstream black people. They know there are racist cops who need to be thrown out of policing. But, they also know bad cops is not even in the top 10 list of problems in the black community. The much more important problems are 78% illegitimacy rate, drugs, alcohol, rejecting education, considering being smart as “being white,” personal responsibility, etc. But, when a black person speaks the truth they are attacked as “Oreo’s.” Same w/ gay people regarding gay marriage. There are MANY gay people who oppose gay marriage. They have been told to STFU and called “self loathers.” Their reasons have nothing to do w/ self loathing but that’s how you STOMP them down. And, often times the most vicious stompers of black people who dare speak the truth are liberal white people who don’t even know any black folk. And the stompers of gay people are often straight liberals. SJW’s marching as to war.
Lisa … my experience with liberal activists who flock to “Muslim” causes is that very few of them have a clue about Muslims in general, let alone the diversity in their various faith sects, for lack of a better word. Most seem to come from liberal bastions on the west or east coasts…hope the POTUS proposal to take in 65,000 Syrian refugees (mostly Shia’ or Christian) places them on the east coast and west coast ….”sanctuary” ya’ know. 🙂 Heaven forbid the liberals from those locales learn anything….such as the refugee reasons for emigrating is flight from religious persecution by other Muslims, mostly Sunni.
Airdog,
I spell it Evilgelical for a reason…
Lisa & Max-1 … I am tolerant of “Evangelicals”, but lately, here where I live, they’ve managed to shut down the Arab Festival, which is NOT a Muslim Festival and one I attended annually as a Catholic (2 blocks from my house) by such lovely “religious” symbolism as carrying pigs’ heads on poles, etc. ad nauseum. NONE of these evangelical activists were from anywhere near here…usually a 1000 miles away or more, such as the idiot “Reverend” Terry Jones. The local and/or private policing costs to control the activists was $300,000 to $500,000 plus various court costs to defend the city. Those are my tax dollars. How is that performance truly “evangelical” and effective in converting anyone? None of them from the outside ever paid for a permit or a tent to make their cases face to face with individuals. They’re punks. Does anyone think Arab Catholics are impressed? I’m a descended Irish guy, converted to Catholicism late in life, secular previously, and I am very aware of the violence sponsored by Anglicans, Catholics, and Presbyterians in the country of my ancestors…a microcosm of the foolishness of religion mixed with politics and elected offices.
I note pointedly that they’ve NOT done the same to Polish Festivals (the biggest one was last weekend) nor Italian celebrations either, both of which are predominantly Catholic…but not ALL Catholic. Their bigotry is obvious and selective, and a bit “racial”….and hardly based upon Christianity. So is that of Ms Davis when she made it about her personal faith not the state’s law. She has her 15 minutes just as the out-of-town evangelicals did here (and damned successfully)…can anyone show me the positive benefits of this activity? They only after effect of this evangelical fervor here from out of town “experts” (with ignorance that is hard to fathom) here has been to increase the influence of the self-serving morons at CAIR….primary Sunni in a Shia’ neighborhood. Go figure.
Warspite, Your comments shine by themselves, but in contrast to some of the middle school variety, they shine even brighter.
The hypocrisy is deafening as the Mayor of San 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 not serve alcohol 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.
Corrected Repost