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Judging Kim Davis
I’ve spent the past few hours reading up a bit on the Kim Davis controversy (I highly recommend Eugene Volokh’s primer). My overwhelming feeling toward Davis is empathy. While many people — myself included, initially — responded with some variation of “If you don’t like the job, you can quit,” the simple fact of the matter is that the terms of the office Davis was elected to were changed on her, and in a way that most of us find deplorable and indefensible. Obergefell was a terrible decision, and many who’ve hailed it as the new Loving will one day come to see how it’s more like the new Roe.
Second, Davis has become the latest victim of the left’s scorched earth tactics. Rather than simply accommodate Davis’s objections by driving to another of Kentucky’s innumerable and relatively tiny counties — all of which can issue marriage licenses to any state resident — the couples suing Davis have decided to use their marriages to make a point at someone else’s expense. Moreover, Davis’s recent conversion and previous marriages have been treated as the butt of jokes, rather than celebrated as someone learning from her mistakes and changing her life for the better.
Lastly, it appears that Judge Bunning took the simple-if-inflammatory option of jailing Davis for contempt when other options were open to him. As much as one plays Bartleby with a federal judge at one’s own risk, Bunning’s wrath seems excessive.
All that said, Davis’s case leaves me with the same feeling I used to have about George W. Bush: her defenders make her case better than she does. She has not argued, as David French has, that the government is abusing its legitimate authority — via a poorly-argued SCOTUS decision based on little more than Anthony Kennedy’s deepest feelings — but that any such redefinition of marriage would be illegitimate from any source. Indeed, Davis’s arguments give the impression that she would have responded identically had same-sex marriage been instituted by state constitutional amendment with the votes of 100% of Rowan County’s residents. Under those circumstances, it would seem that resignation would be the honorable way to go.
Of course, that’s not what happened. Davis might want to refine her language and sharpen her points, but she’s not the bad guy here.
Published in Law, Marriage
She’s the one who was making a point at someone else’s expense, someone who pays her salary. She’s not a “good guy”. Saying that the terms were changed on her doesn’t make much sense. She’s not a lawgiver; laws do change and her oath required her to obey them. Davis is not a good advocate for her cause; we agree on that.
But when they change illegitimately do we all just buck up and obey? Seems rather un-American to me.
Yes, it is easy to imagine ourselves suddenly facing an unacceptable change in our job duties and to guess how we would react. But there are numerous aspects to this case that have not been reported are now leaking out. Yes, the duties of the marriage license dispenser were quite high-handedly changed. And her superiors took their marching orders from CNN rather than through the duly elected chain of command.
There is much room for reconsidering how I feel about it in light of the new information…
This. Laws change all the time. Whether Obergefell was a terrible decision should have no bearing on a government bureaucrat fulfilling their duty.
What if a Quaker county clerk decided not to issue fire arm permits because they disagreed with Heller on religious and moral grounds?
She can’t use her government position to disobey the law. She can resign and campaign against Obergefell as a private citizen.
Christians need not apply. Got it.
This entire situation vaguely reminds me of The Jack Bull, a 1999 HBO movie starring John Cusack and John Goodman. The movie is an object lesson in the disaster caused by bad judges.
Cusack plays a Wyoming horse trader who is abused by a rich, wicked land baron who has the local judge on his payroll. The dispute begins over two horses that Cusack leaves with the land baron as security for an unlawful toll that the land baron demands from Cusack. Denied justice in the courts, and with his wife killed (accidentally) as a result of the rancher’s machinations, Cusack ultimately leads a militia-style rebellion.
John Goodman finally shows up as the good judge. He overturns the crooked judge’s decision, imprisons the land baron for perjury, and forces the land baron to nurse Cusack’s two horses back to health and return them. Both the land baron and the crooked judge are ruined.
But Cusack is then hanged for murder and armed insurrection, as he was guilty.
Judge Bunning strikes me as the good judge in this situation. He seems to be an honorable man, and is a George W. Bush appointee. I infer that he disagrees with Obergefell, but recognizes his duty to uphold the law as decided by SCOTUS.
The fault, quite frankly, rests squarely on Justice Kennedy. Much as the fault for millions of abortions in this country rests squarely on him and former Justice O’Connor.
You mean like how Obama can’t use his government position to disobey immigration law? Or how Hillary Clinton can’t use her government position to disobey laws on state secrets?
I’m ok with both Davis and Obama going to jail for disobeying the law, but if we are going to throw government officials in jail for refusing to follow the law, we need to be consistent and not just throw Christians in jail.
I must say, the Volokh article was certainly enlightening. I wish I had read it a few days ago.
This seems a little overplayed. No one’s life is ending because of Obergefell. I’m surprised you think it’s likely that people are going to be upset over this case for a long time rather than opinions changing mostly in the direction they’ve been going with dissenters mostly dying off rather than being replaced in new generations.
This is the walking around shooting the wounded that Jonah Goldberg was talking about.
OK, tell it to the California governor and attorney general, who refused to defend Proposition 8. And all of those sanctuary city folks. Why weren’t any of them held in contempt by a federal judge and thrown in jail?
And historically, what about the abolitionists and the underground railroad? Should they all have been thrown in jail?
I think that the situation is more complex than you say. It is not obvious to me that simply yielding to SCOTUS tyranny is the only possible course of action. And yes, in this case, I think that Obergefell is tyranny. Five SCOTUS justices imposed their will on the nation without the slightest shred of a colorable Constitutional argument. It is the worst decision since Roe.
To a certain extent yes, but the gay couples could have chosen to avoid the controversy by simply going to the other clerks’ offices. I agree there’s a difference in kind between doing that for a private business and a government office, but it might still have been the decent and better thing to do rather than sue. Maybe use Davis’s intransigence as cause for protest or impeachment if they really wanted to.
She’s not wounded. We’re not shooting her. She shot herself in the foot. No sympathy for this puffed-up bureaucrat who makes $80,000 a year in a rural county giving out licenses.
Tom, why shouldn’t she have done the decent and better thing and issued the licenses? Or at least allowed her staff–5/6 willing–to issue them?
Five Supreme Court justices should be the ones in jail. They are enacting their whims with no basis in our Constitution. The fact that there is resistance to their outright abuse of their power should not come as surprise. The nature of this usurpation of power is that there is no democratic recourse any longer. It is a permanent change forced upon the citizenry by judge oligarchs. I have heard that the public attitude has changed but find it interesting that judges felt it necessary to force it instead of waiting for the democratic change they forecast. There will be more mischief ahead as a result of this decision and who knows what else these judicial criminals feel that they can dictate. When you love the outcome despite the abuse of power you are not a good guy.
The same could be said of the people that wanted a cake or a pizza.
The point of suing Christians for being Christians is not to get a cake or a marriage license, but to use the strong-arm of the government to attack Christians and beat them into servile submission to the left’s agenda. The sooner we stop pretending otherwise, the better.
It’s a big assumption to think this is either decent or better. It sounds to me like you disagree more with her beliefs than her actions based on them.
I should have made it a clearer that I’m not absolving Davis of responsibility for her situation, or implying that she’s in the right. I do, however, have a fair deal of sympathy for her, and am highly annoyed at the football spiking. I also think that — given her rhetoric — resignation may well be the best way for her to go.
However…
That’s a pretty good counterfactual, but Davis’ issue is narrower than that; let’s say that she objected to issuing permits for combat-style rifles in rural Connecticut and that such firearms had never been sold there, and that permits were available at nearby townships. While I’d totally countenance activism against the clerk — maybe organizing people to apply for permits from him in order to get turned down and call attention to the matter — suing like this seems like civil overkill, given that the licenses are available nearly as easily elsewhere.
Basically, give the system time to adjust. Maybe, again, peruse impeachment or recall rather than calling the feds in.
They weren’t held in contempt because they didn’t defy the orders of the federal judiciary. They did obey Prop 8, but they aren’t required to defend the law
They should have been thrown in jail—and they were. When you choose to play Antigone, you must accept Creon’s punishment.
When millions are slaughtered because of Obergefell, you can compare it to Roe. That seems like the sort of hyperbolic comparison one would expect from a politician trying to raise funds. If any relatively recent ruling is as bad as Roe, it’d probably be Kelo. And even that is hardly as ghastly a ruling as Roe, which is probably the worst ruling since Dred Scott.
I agree, though I think it’s more about the Leftist tendency to not allow dissent than about Christian-beating (a bonus, rather than a motivation). Also, I think there’s a difference between private businesses and offices of the state, even if that office isn’t acting in as a monopoly.
I intended to use Roe as a comparison in terms of the justices making up stuff, rather than in its moral offensiveness on the merits of the issue. I wasn’t clear about that. I agree that Kelo would have been a better, less-inflammatory example.
Did the supremes overreach? Did they get it wrong? I say yes on both counts. Either way, though, that’s a political question that was handled through the normal means we’ve established for sorting out these kinds of differences, and the appropriate response is also a political question best handled through the means established within our system.
The choices are pretty simple: either use the means within the system to effect the change you want, or reject the legitimacy of the system and use whatever means you are comfortable using to effect the change you want – including disregarding the results arrived at by our representatives and their appointees.
Are you willing to reject politics (and the system we’ve established to legitimately sort out political questions) in favor of imposing your view on everyone else? Ok, we all have our tipping point I suppose, but then repudiate the system and resign from your post in it. Not willing to repudiate the system and yet you can’t go along with your official duties? There’s no shame in that, but then honor your duty and your office by resigning instead of ignoring the law.
It might be Schadenfrude or however you spell it, but I take some small satisfaction in Kim Davis being a Democrat.
Kelo followed a chain of precedent where the decisions got progressively worse as they built on previous work of the court. Obergefell barely had that, unless one wants to give Scalia his due for his dissent in Lawrence.
My understanding is that under Kentucky state law the Clerk has to sign the licenses regardless of who actually performs the work – thus requiring her to sign the license if issued. The deputies can’t issue licenses – or couldn’t until a federal judge demanded they do so in contravention of KY state law.
Which didn’t apply to the AG regarding DOMA, or the state AG’s to defend amendments or statutes on marriage, or the DC clerks refusing to issue firearms permits, or Gavin Newsom issuing licenses to gay couples in violation of the law. Only one group of people should obey the law against their conscience, especially if their beliefs are icky, because that’s how the law today works!
The problem here is that we’ve left rule of law behind and entered rule of man – and plenty of people on both left and right are okay with that as long as it’s their man doing the ruling.
The reason that this is a hard case is because there are competing values to be balanced.
The Obergefell decision is terrible, but unless we are going to impeach the Court it is the law of the land. It doesn’t matter that it is a classic case of judicial overreach without basis in the Constitution.
Obama, Clinton, the mayors and councils of the sanctuary cities should all be in jail for their lawlessness. That is true, but also irrelevant. That argument is as effective as telling the cop who is writing up your speeding ticket that others are speeding all around you, or that he should be out arresting some real criminals.
The homosexuals who sue the bakers, photographers, and court clerks strike me as nasty pieces of work, who, if they were more decent, would live and let live when it would not put them out very much to do so.
But we simply cannot allow every government bureaucrat to do his job, or refuse to do it, based on his personal religious beliefs. That leads to anarchy.
How does using the means within the system look when the system itself was subverted and overthrown by the justices?
This is such an uncommon occurrence of an individual’s liberty/conscience being in conflict with the “law” that I don’t see where it becomes anarchy.
That may be the scariest sentence I’ve read in a while because it always should matter, and matter a great deal, that our laws and judgments have basis in the Constitution.
Do you say the same thing about Christians in Nevada who might be called upon to issue gaming or prostitution licenses? Is that also a case of Christians need not apply?
I know people glaze over when we get into the philosophical weeds of marriage and I know I have a minority opinion of what marriage is, but I think this is a perfect illustration of the fact that civil marriage is a different thing from religious marriage. The two institutions operate differently, according to separate authorities, for different purposes, with different consequences, and with different qualifications.
This is not the same as the state forcing religious groups to sanction these unions religiously. This is not the same as the state banning religious groups from sanctioning sacraments according to non-civil standards. The sacramental is not the civil and vice versa. It was nice (understatement) that we had a culture where these largely overlapped and ran concurrently, but we don’t have that anymore. While I think it’s lamentable, it isn’t unjust or illegitimate.