Judging Kim Davis

 

DavisI’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
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  1. The King Prawn Inactive
    The King Prawn
    @TheKingPrawn

    Ed G.: It was nice (understatement) that we had a culture where these largely overlapped and ran concurrently, but we don’t have that anymore.

    This is the core of the contention, and I have nothing to argue other than it was nice, and probably much better, when it was the old way.

    • #31
  2. Ed G. Member
    Ed G.
    @EdG

    The King Prawn:

    Ed G.: 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.

    How does using the means within the system look when the system itself was subverted and overthrown by the justices?

    That in itself is a political assessment. If you think so then convince your fellow citizens to elect people who will do something to correct the situation.

    Personally, as I said, I think both that they were wrong and that they overreached. However, we do have legitimate and reasonable remedies for that: legislation, constitutional amendment, impeachment, better appointments, a different decision next time.

    • #32
  3. The King Prawn Inactive
    The King Prawn
    @TheKingPrawn

    Ed G.: However, we do have legitimate and reasonable remedyies for that: legislation, constitutional amendment, impeachment…

    The bar is low for misbehavior, but the corrective action has a disproportionately high bar to accomplish.

    • #33
  4. Man With the Axe Inactive
    Man With the Axe
    @ManWiththeAxe

    The King Prawn:

    Man With the Axe: 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.

    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.

    Much in the same way that a single case of forcing the baker or photographer to work the gay wedding feels like tyranny. It doesn’t have to happen much, at first, to start down the wrong road.

    Man With the Axe: It doesn’t matter that it is a classic case of judicial overreach without basis in the Constitution.

    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.

    You misunderstand me. Of course, it matters to me, a great deal. I can think of few things about our government that matter more. I mean that it doesn’t matter to the case at hand.

    • #34
  5. Ed G. Member
    Ed G.
    @EdG

    The King Prawn:

    Ed G.: However, we do have legitimate and reasonable remedyies for that: legislation, constitutional amendment, impeachment…

    The bar is low for misbehavior, but the corrective action has a disproportionately high bar to accomplish.

    I think that’s a good thing too (that the bar is high). It’s just one more way that the 51% will have a harder time being tyrannical with the 49%.

    Otherwise I disagree that the bar is low. The electorate can tug on the leash whenever it wants. Perhaps they disagree that this counts as misbehavior that needs correcting. In which case your task is the same: convince your fellow citizens of the reason of your position.

    • #35
  6. Fake John Galt Coolidge
    Fake John Galt
    @FakeJohnJaneGalt

    Gary McVey: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.

    According to the local papers gay couples from San Francisco are coming to her county to get a license or be turned down so they can be part of the historic event and strike a blow for gay rights.  Somebody is making a point for sure.

    • #36
  7. WillowSpring Member
    WillowSpring
    @WillowSpring

    The amendment to the Kentucky constitution (passed by 75% in 2004) makes it illegal for the state to perform same sex marriages or civil unions.  That is still on the books.  It seems that the legal system needs to process the shock given to it by the supreme court before people are jailed for following Kentucky law.

    • #37
  8. Jamie Lockett Member
    Jamie Lockett
    @JamieLockett

    Let’s just be clear: “Obama did bad stuff too”is not a legitimate argument.

    • #38
  9. A-Squared Inactive
    A-Squared
    @ASquared

    Tom Meyer, Ed.: 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 think the two are more closely related than you think, but my own view is the hatred of Christians is more important than their disapproval of dissent.  They don’t try to put people in jail who complain about the welfare state.

    (Not that it matters, but I say this as an agnostic who has no dog in this in fight other than I would like to preserve what is good about this country for my children, but I fear it is already too late for that.  We were a proud nation once, but no more.)

    • #39
  10. Fake John Galt Coolidge
    Fake John Galt
    @FakeJohnJaneGalt

    Gary McVey: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?

    5/6 that are willing to issue them after they saw what happened to her.  This is old Mafia style politics.  You ask a person a question, you do not like the answer so you knock them off in front of others.  You then ask the next person the question.  Don’t like the answer do the same.  Does not take long before everybody gives the answer you want.  Yeah!! you won by merit of your argument.

    Not sure why I called that Mafia style politics.  It is really just politics.

    • #40
  11. Bob Thompson Member
    Bob Thompson
    @BobThompson

    Jamie Lockett:Let’s just be clear: “Obama did bad stuff too”is not a legitimate argument.

    Your assertion cannot stand by itself. It needs some support.

    • #41
  12. A-Squared Inactive
    A-Squared
    @ASquared

    Jamie Lockett:Let’s just be clear: “Obama did bad stuff too”is not a legitimate argument.

    No, but inconsistent punishment of government officials who refuse to follow the law is valid point for discussion (which is different than being an argument).  If the left is so convinced that any government official who refuses to follow the law belongs in jail, Kim Davis is WAY down on the list.

    As I said earlier in post #8, I’m ok with all of them being in jail, but I’m not OK with the left throwing Christians in jail for being Christians while worshiping the law-breaking of Obama and Lois Lerner.

    • #42
  13. Austin Murrey Inactive
    Austin Murrey
    @AustinMurrey

    Jamie Lockett:Let’s just be clear: “Obama did bad stuff too”is not a legitimate argument.

    I think it’s worth noting that certain illegal activities by bureaucrats and elected officials are sanctioned and unpunished because they meet with approval from all the right people. As always, anyone else’s mileage may vary.

    It’s also worth noting that the root of this issue is a decision where a Supreme Court Justice (Scalia, for the record) said in his dissent:

    “And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.”

    That is a Supreme Court Justice intimating that it would be justifiable for people to take up arms against the government over Obergefell and what it represents.

    • #43
  14. Klaatu Inactive
    Klaatu
    @Klaatu

    Man With the Axe: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.

    This again brings to mind Lincoln’s 1st Inaugural,

    I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. 

    This really is part of a much larger issue involving the role of the Court in a republic and the idea of judicial supremacy.

    • #44
  15. Western Chauvinist Member
    Western Chauvinist
    @WesternChauvinist

    Jamie Lockett: This. Laws change all the time. Whether Obergefell was a terrible decision should have no bearing on a government bureaucrat fulfilling their duty.

    Because, unless one fulfills even unjust laws in one’s civil service capacity, one forgoes the defense, “Auchtung! I was just following orders.”

    • #45
  16. Vance Richards Inactive
    Vance Richards
    @VanceRichards

    Gary McVey: Tom, why shouldn’t she have done the decent and better thing and issued the licenses?

    And why didn’t Rosa Parks pick herself up and give her seat to a man who was legally entitled to it? And why didn’t Martin Luther King just keep his mouth shut in Birmingham after the state issued an injunction against his protests? He could have found some other city to protest in.

    I can’t answer for any of these three, but they all intentionally broke laws the felt were unjust.

    • #46
  17. Jamie Lockett Member
    Jamie Lockett
    @JamieLockett

    The King Prawn:

    Jamie Lockett:

    The King Prawn: But when they change illegitimately do we all just buck up and obey? Seems rather un-American to me.

    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.

    Utterly ridiculous. I’m sure there are thousands of Christians who would gladly take that job and hand out the licenses. This is a certain segment of Christianity for which this particular issue is paramount and they would best be served by finding other employment. Similar to how pacifists probably shouldn’t join the military and Vegans probably shouldn’t go work for a meat packing company.

    • #47
  18. Jamie Lockett Member
    Jamie Lockett
    @JamieLockett

    Western Chauvinist: Because, unless one fulfills even unjust laws in one’s civil service capacity, one forgoes the defense, “Auchtung! I was just following orders.”

    Really? You’re going to Godwin the thread on page 3? [redacted for CoC]

    • #48
  19. Jamie Lockett Member
    Jamie Lockett
    @JamieLockett

    Vance Richards: And why didn’t Rosa Parks pick herself up and give her seat to a man who was legally entitled to it?

    Because Rosa Parks wasn’t a public servant with a duty to the public that’s why.

    • #49
  20. Petty Boozswha Inactive
    Petty Boozswha
    @PettyBoozswha

    Fake John Galt:

    According to the local papers gay couples from San Francisco are coming to her county to get a license or be turned down so they can be part of the historic event and strike a blow for gay rights. Somebody is making a point for sure.

    I remember when I was a boy the only cranks and busybodies like this we had to deal with were on the right: some old spinster or the Catholic Decency League writing the FCC about Lenny Bruce or a “racy” TV show… back then everybody understood that just participating in such events proved you were an oddball with too much time on your hands to understand the mentality of normal people. Now the tables have turned, troublemaking has become a cottage industry on the left from Black Lives Matter to these “activists.” I think it’s very sad.

    • #50
  21. Tom Meyer, Ed. Member
    Tom Meyer, Ed.
    @tommeyer

    Gary McVey: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?

    Her objection was that — with the current way the system worked — the licenses would appear to be granted under her authority, something she considered against her conscience. On the other hand, he’s been very persnickety about what she wants.

    Now, I’m generally skeptical of government agents demanding freedom of conscience protections in doing their duties and I think Davis should be subject to repercussions (as Mike Hubbard said, you play Antigone, you’re opening yourself up to Creon). On the other hand, there was no emergency here — the licenses were available elsewhere — and a number of other remedies were available to deal with Davis’ intransigence short of federal court.

    • #51
  22. Jamie Lockett Member
    Jamie Lockett
    @JamieLockett

    Bob Thompson:

    Jamie Lockett:Let’s just be clear: “Obama did bad stuff too”is not a legitimate argument.

    Your assertion cannot stand by itself. It needs some support.

    There have been a few commenters on this thread making a version of the argument:

    “Well Obama doesn’t uphold the law in [insert lawless Obama action here]”

    Conservatives rightly castigate Obama when he does something lawless with which they disagree. They should apply same logic to Ms. Davis.

    • #52
  23. Klaatu Inactive
    Klaatu
    @Klaatu

    Jamie Lockett:

    Vance Richards: And why didn’t Rosa Parks pick herself up and give her seat to a man who was legally entitled to it?

    Because Rosa Parks wasn’t a public servant with a duty to the public that’s why.

    A public that voted more than 2-1 against what Anthony Kennedy demands.

    • #53
  24. PHCheese Inactive
    PHCheese
    @PHCheese

    When I had my cheese company the processing area were 70 or so people worked was kept a 55 degree temperature. This was for health department reasons. It was year around. About every six months I would get a delegation of employees asking to have it raised to 70 degrees. I would explain that it was not negotiable and it was easy to prepare clothes for the situation. Some would get irritated. My last word was that they should seek a job were the temperature suited them but it would not be here.

    • #54
  25. Man With the Axe Inactive
    Man With the Axe
    @ManWiththeAxe

    Vance Richards:

    Gary McVey: Tom, why shouldn’t she have done the decent and better thing and issued the licenses?

    And why didn’t Rosa Parks pick herself up and give her seat to a man who was legally entitled to it? And why didn’t Martin Luther King just keep his mouth shut in Birmingham after the state issued an injunction against his protests? He could have found some other city to protest in.

    I can’t answer for any of these three, but they all intentionally broke laws the felt were unjust.

    But as King said, if one is going to break the law in protest he must willingly accept his punishment.

    • #55
  26. Vance Richards Inactive
    Vance Richards
    @VanceRichards

    Jamie Lockett:

    Vance Richards: And why didn’t Rosa Parks pick herself up and give her seat to a man who was legally entitled to it?

    Because Rosa Parks wasn’t a public servant with a duty to the public that’s why.

    The county can fire Davis. The fact that they haven’t might say something about what they think of having their democratically passed laws overruled by judicial fiat.

    • #56
  27. Tom Meyer, Ed. Member
    Tom Meyer, Ed.
    @tommeyer

    Vance Richards:

    The county can fire Davis. The fact that they haven’t might say something about what they think of having their democratically passed laws overruled by judicial fiat.

    Actually, they can’t. Her clerkship is an elected office.

    • #57
  28. Ed G. Member
    Ed G.
    @EdG

    Vance Richards:

    […..]

    And why didn’t Rosa Parks pick herself up and give her seat to a man who was legally entitled to it? And why didn’t Martin Luther King just keep his mouth shut in Birmingham after the state issued an injunction against his protests? He could have found some other city to protest in.

    I can’t answer for any of these three, but they all intentionally broke laws the felt were unjust.

    Sure they had just causes. However, they also didn’t reject the punishment of the system. They didn’t take hostages or initiate a shootout to evade arrest or incite rebellion. They accepted the consequences in order to highlight the systematic injustice and as a means of persuasion.

    If injustice was done to Kim Davis then perhaps her arrest will similarly serve to highlight the fault and cause people to fix the situation. As I say, while I think the court was wrong and the consequences will be larger than people expect, I don’t think changing what counts as civil marriage is an injustice or illegitimate. Civil marriage is not the same as sacramental marriage; her rights to practice her faith are not being impeded any more than having to issue a prostitution license in Nevada would be an impediment.

    • #58
  29. Petty Boozswha Inactive
    Petty Boozswha
    @PettyBoozswha

    I agree the law has to be enforced, but I think the Judge didn’t really think out his role in this guerrilla theater – by jailing her he confirms her martyr status and keeps the ball rolling. A much better resolution would have been to find her in contempt and then confiscate her salary until she decided to see the light or resign.

    • #59
  30. Bob Thompson Member
    Bob Thompson
    @BobThompson

    Tom Meyer, Ed.:

    Vance Richards:

    The county can fire Davis. The fact that they haven’t might say something about what they think of having their democratically passed laws overruled by judicial fiat.

    Actually, they can’t. Her clerkship is an elected office.

    From the beginning, could she not have closed her office of dropped issuing marriage licenses at all?

    • #60
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