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Kim Davis: Hero or Villain?

kim-davis-mugshotDefiant 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?

MLK_mugshot_birminghamThere 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.

220px-Wallace_at_University_of_Alabama_edit2And 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.

300px-Daniel_in_the_Lion's_Den_c1615_Peter_Paul_Rubens

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

366 thoughts on “Kim Davis: Hero or Villain?”

  3. DavidM wrote “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.”

    You are exactly right and that Democrat governor Beshear will lose his Job, he won’t be voted in again. It’s his job to stand for his states rights and the constitution of the state of Kentucky that he was sworn to uphold.

    I would not follow the SCOTUS ruling as the Governor of Texas is doing by standing up and backing his clerks in his state, as he believes SCOTUS have overstepped their authority. Kagan should have recused herself because she is prejudice on the subject and broke the law on it too.

  4. Shafanullifart. . . “WTF is this‽ A still photo from Green Acres or the neighbors of the Duck Dynasty Bunch‽
    A parody of Hee Haw‽”

    “This is Huckabee’s base. It doesn’t get any baser than this.”

    Not Huckabees base atall, their your base, all Democrats !!! lmao

  5. It takes very little energy cutting and pasting articles and links. I wonder why it would bother anyone enough to comment on it? Deep seated problems unrelated to the issue perhaps? Perpetually angry and resentful? Who knows, no one cares.

  6. One does have to wonder about all the energy expended on rage and love regarding this woman. There are obviously underlying deep seeded problems unrelated to this woman or even this issue. I guess it’s just like another reality show. LOL!!

  8. http://www.billboard.com/articles/columns/rock/6686080/survivor-kentucky-county-clerk-kim-davis-eye-tiger-rally

    “It might be Kim Davis’ favorite hype-up song, but Survivor says it did not grant the embattled Kentucky county clerk the rights to use “Eye of the Tiger” at her get-out-of-jail rally.

    “I was very surprised and dismayed at the misuse of the song I co-wrote with Frankie Sullivan for Rocky lll,” he said. “The song has motivated thousands through the years to reach beyond their limits. Its use for the release of Kim Davis does not support my views or my politics. I have contacted my publishers to make sure this usage is stopped immediately.”

    NO! We did not grant Kim Davis any rights to use “My Tune -The Eye Of The Tiger.” I would not grant her the rights to use Charmin!
    C’mom Mike, you are not The Donald but you can do better than that –
    See Ya really SoooooooonnnnnnN!!!!!!…
    FS”

  9. This conversation, such as it is, is largely absurd. Kim Davis is neither a hero nor a villain. She is instead an ignorant fool unwittingly employed in the service of political nonsense. I do not doubt the sincerity of her beliefs nor her conviction that she is bearing witness to the truth of her religion. Unfortunately, she has become nothing more than an unwitting pawn in a war that she does not understand over principles that mean nothing to her. She is not a martyr to a cause, but a victim of collective ignorance. She will be remembered primariy as someone who fell in defense of a religious battle that was neither winnable nor rational.

  10. Fat, white, religious and conservative. Not only are there no PC protections for that combo, it’s always open season! You can say ANYTHING w/ impunity.

  11. WTF is this‽ A still photo from Green Acres or the neighbors of the Duck Dynasty Bunch‽
    A parody of Hee Haw‽

    This is Huckabee’s base. It doesn’t get any baser than this.

  13. Warspite, I always give kudos to well thought out, logical comments. In this thread they shown brightly. You earned the compliment. Keep them comin’!

  14. In the video, the playing of “Eye of the Tiger” was so over the top. Well, we might as well let this thing play its way out.

  15. I wonder if Mr. Huckabee would have been content to be just among the crowd showing his support as opposed to injecting himself right on stage with Ms. Davis? What was he really there for, Davis or his own aggrandizement?

    Actually Ms. Davis should really thank the plaintiff couple for her eventual release. According to the release order it was largely because they did not object to her name being absent on the marriage license (it was essentially listed as by the deputy clerk for the county of Rowan, instead of in the name of Ms. Davis) that resulted in her release. It is of course conditional upon her not interfering with her deputy clerks issuing the licenses and providing reports every fortnight.

    I suspect that this issue might be revisited if a couple comes to the clerk’s office and demands that Ms. Davis’s name be on the license or else it is not considered valid and they were denied a valid license.

  16. Huff Post headline: “Fanatic Freed”

    Yep. Got that one right.

    Huckabee: ‘If Somebody Needs To Go To Jail, I’m Willing To Go In Her Place’

    That would be great, Mike.

  17. Thanks, Annie. One word for that video:

    Embarrassing.

    “Eye of the tiger”? Really?

  18. https://www.law.cornell.edu/constitution/articleiii

    “The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;–to all cases affecting ambassadors, other public ministers and consuls;–to all cases of admiralty and maritime jurisdiction;–to controversies to which the United States shall be a party;–to controversies between two or more states;–between a state and citizens of another state;–between citizens of different states;–between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.”

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