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. Ed G. Member
    Ed G.
    @EdG

    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,

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

    Also the larger issue of the other branches exercising their checks and balances appropriately. The biggest issue, though, is the failings of the electorate and culture.

    • #61
  2. Gary McVey Contributor
    Gary McVey
    @GaryMcVey

    It used to be that on any conservative site, the argument would sputter to its end when the final commenter on the losing end would type “Well, at least (Michele Bachmann/Ted Cruz/Phil Robertson/fill in the blank) didn’t drown anyone in the back set of their car!!”

    And if Teddy Kennedy had been there on the thread, it would have been a devastating retort.

    • #62
  3. Bob W Member
    Bob W
    @WBob

    Was there a statute that Davis was actually breaking by not issuing the license?  Not the spirit of a court decision, but a statute? I’ve never heard this discussed.  If there wasn’t, then her incarceration was illegal, not because of religious freedom, but for the same reason that it would be illegal for the court to order the incarceration of legislators for not enacting laws that the court wanted passed and/or enacting legislation to codify Obergefell.

    • #63
  4. David Knights Member
    David Knights
    @DavidKnights

    The more that happens subsequent to the SCOTUS decision this past summer, the more and more I am reminded of the nullification crisis of the 1820-30s.

    Not sure it will happen on this issue, but sometime, somewhere soon, the SCOTUS will make a decision that will lead the people of one or more states to say, ENOUGH!  We won’t obey.

    Its easy to pound away at one county clerk, but what happens when 99% of the clerks in the state refuse?  Does the federal government call in the troops?

    Like the taxing power, the authority of SCOTUS depends on the voluntary cooperation of the populace.  What happens when they lose that?  I don’t know, but I suspect that once its lost it will be impossible to get back.

    • #64
  5. Jamie Lockett Member
    Jamie Lockett
    @JamieLockett

    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.

    And if we lived in a true democracy with majority rule that might matter.

    • #65
  6. Lucy Pevensie Inactive
    Lucy Pevensie
    @LucyPevensie

    A-Squared:

    Tom Meyer, Ed.:

    … 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.

    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.

    And, Gary, once the Christians are no longer the most notable dissenters from Progressive mind control, they may come after the Ricochet members, or some other group that you belong to. This is very much a “first they came for the Jews . . . ” situation.

    • #66
  7. Vance Richards Inactive
    Vance Richards
    @VanceRichards

    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.

    Impeach?

    • #67
  8. Western Chauvinist Member
    Western Chauvinist
    @WesternChauvinist

    Jamie Lockett:

    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? I used to think more of you.

    The point is, people making your argument are using the “just follow the law, or quit” argument because you believe the imposition of SSM by the SCOTUS to be just.

    Besides being a weak argument (as is the defense, “I was just following orders”), it makes me think you didn’t read Volokh’s piece.

    • #68
  9. Jamie Lockett Member
    Jamie Lockett
    @JamieLockett

    I would just like to point out the irony of conservatives defending a government bureaucrat for denying people something that have a right to under current law.

    • #69
  10. Gary McVey Contributor
    Gary McVey
    @GaryMcVey

    Any GOP candidate who rushes to Kim Davis’s side is someone I’m flat out not going to vote for. You want to vote for Cruz or Huckabee? Nobody’s stopping you.

    Incidentally, as people bring up California’s Prop 8: there’s been quite a bit of time since the state refused to push it in court, so how did those angry pro-8 voters respond?

    They voted for the Democrats anyway. They didn’t care enough about the issue to vote them out. Not the blacks, who the SoCons think were so indignant; not the Latinos, who Maggie Gallagher always called the church-going heart of the “marriage” movement.

    • #70
  11. Jamie Lockett Member
    Jamie Lockett
    @JamieLockett

    Western Chauvinist: The point is, people making your argument are using the “just follow the law, or quit” argument because you believe the imposition of SSM by the SCOTUS to be just.

    Not only have you been around long enough to know this isn’t true I have explicitly said on this thread that I think Obergefell is a bad decision.

    Why are you lying to make a rhetorical point?

    • #71
  12. Austin Murrey Inactive
    Austin Murrey
    @AustinMurrey

    A final note from me: it’s hard to get too outraged about this whole affair.

    Is Obergefell a bad decision? Yes.

    Should Davis have issued the license? Yes.

    Am I surprised someone claimed their personal beliefs overrode the law? No.

    Am I surprised she went to jail for contempt? No.

    When people at all levels of government perform in a manner contrary to law it is hardly surprising someone not on the side of the progressives in the culture war simply decided that they didn’t have to follow the law either.

    Bureaucrats or elected officials who cannot in good conscience do the job they are hired to do, either by a bureaucracy or the electorate, should resign in protest or be fired/impeached. In the absence of that event then what’s good for the goose is good for the gander.

    • #72
  13. Man With the Axe Inactive
    Man With the Axe
    @ManWiththeAxe

    Gary McVey:It used to be that on any conservative site, the argument would sputter to its end when the final commenter on the losing end would type “Well, at least (Michele Bachmann/Ted Cruz/Phil Robertson/fill in the blank) didn’t drown anyone in the back set of their car!!”

    And if Teddy Kennedy had been there on the thread, it would have been a devastating retort.

    I used that line just yesterday on a different thread. It never gets old.

    • #73
  14. A-Squared Inactive
    A-Squared
    @ASquared

    Jamie Lockett:

    Western Chauvinist: The point is, people making your argument are using the “just follow the law, or quit” argument because you believe the imposition of SSM by the SCOTUS to be just.

    Not only have you been around long enough to know this isn’t true I have explicitly said on this thread that I think Obergefell is a bad decision.

    Why are you lying to make a rhetorical point?

    No, but I do find it interesting (and unsurprising) that the Rico members that have been most vocal in support of SSM are the same ones most vocal in support of locking Davis in jail and throwing away the key.

    It is very hard to separate your personal view of SSM and your personal view of Davis’s actions.

    • #74
  15. Bereket Kelile Member
    Bereket Kelile
    @BereketKelile

    11896135_10153592484943739_1117435635225133511_n

    • #75
  16. Bereket Kelile Member
    Bereket Kelile
    @BereketKelile

    I’m just tired of having to play the game according to the rigged rules they write. There needs to be a push back against judicial supremacy. Resistance can be a deterrent.

    Politically, though, I think this will have an effect on a lot of people who don’t feel right about the fact that a person is sitting in jail over this issue.

    • #76
  17. Jamie Lockett Member
    Jamie Lockett
    @JamieLockett

    Bereket Kelile: No, but I do find it interesting (and unsurprising) that the Rico members that have been most vocal in support of SSM are the same ones most vocal in support of locking Davis in jail and throwing away the key. It is very hard to separate your personal view of SSM and your personal view of Davis’s actions.

    You may not recall but I was equally vocal about Gavin Newsom circumventing the law in California and castigated Obama for not defending DOMA.

    Some of us are ideologically consistent.

    • #77
  18. Lucy Pevensie Inactive
    Lucy Pevensie
    @LucyPevensie

    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.

    I’m sure they could recall her.  That’s how you “fire” an elected official. I’m willing to bet that there is no large “recall Kim Davis” movement in a state where she is, remember, following a law still technically on the books and passed by a large majority of the voters.

    Fundamentally, this feeling that our government has become illegitimate is very strong here in the South, and it is very, very deep. Those of you who don’t live here probably are living under the illusion that it will go away. It will not.

    • #78
  19. Gary McVey Contributor
    Gary McVey
    @GaryMcVey

    A-Squared:

    Jamie Lockett:

    Western Chauvinist: The point is, people making your argument are using the “just follow the law, or quit” argument because you believe the imposition of SSM by the SCOTUS to be just.

    Not only have you been around long enough to know this isn’t true I have explicitly said on this thread that I think Obergefell is a bad decision.

    Why are you lying to make a rhetorical point?

    No, but I do find it interesting (and unsurprising) that the Rico members that have been most vocal in support of SSM are the same ones most vocal in support of locking Davis in jail and throwing away the key.

    It is very hard to separate your personal view of SSM and your personal view of Davis’s actions.

    That’s true, Asquared, and it’s true of both sides. Some on the thread are trying to do just that, though.

    • #79
  20. Jon Gabriel, Ed. Contributor
    Jon Gabriel, Ed.
    @jon

    I noticed a few personal accusations flying around. Everyone please remember to play the ball not the man. We can discuss the issues involved without impugning anyone’s character. Thank you!

    • #80
  21. Western Chauvinist Member
    Western Chauvinist
    @WesternChauvinist

    Jamie Lockett:I would just like to point out the irony of conservatives defending a government bureaucrat for denying people something that have a right to under current law.

    I would just like to point out the irony of “libertarians” being proponents of positive “rights.”

    Conservatives believe in retaining (conserving) standards which have been shown to promote the social good. Limiting marriage to people who meet the standards is characteristically conservative.

    • #81
  22. A-Squared Inactive
    A-Squared
    @ASquared

    Gary McVey: That’s true, Asquared, and it’s true of both sides. Some on the thread are trying to do just that, though.

    I agree both sides are doing it.  That was my point.

    • #82
  23. Gary McVey Contributor
    Gary McVey
    @GaryMcVey

    Lucy Pevensie:

    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.

    I’m sure they could recall her. That’s how you “fire” an elected official. I’m willing to bet that there is no large “recall Kim Davis” movement in a state where she is, remember, following a law still technically on the books and passed by a large majority of the voters.

    Fundamentally, this feeling that our government has become illegitimate is very strong here in the South, and it is very, very deep. Those of you who don’t live here probably are living under the illusion that it will go away. It will not.

    Lucy, outside the South the feeling that we’re sick and tired of people “threatening” to take their ball and go home is also very deep and it’s not going away either.

    The so-called, self-appointed “base” keeps saying they’re going to leave the GOP. There’s the door.

    • #83
  24. Jamie Lockett Member
    Jamie Lockett
    @JamieLockett

    Western Chauvinist: I would just like to point out the irony of “libertarians” being proponents of positive “rights.”

    Again you know for a fact that this libertarian doesn’t believe marriage to be the province of government at all, but that because it is government shouldn’t be allowed to restrict it to those it favors.

    This is a restriction on government action (Kim Davis is a functionary of government) not a positive right.

    Are you going to keep mischaracterizing my positions?

    • #84
  25. Leigh Inactive
    Leigh
    @Leigh

    The question of what Kim Davis should do — whether she should resign or not — is for most of us really a very minor question. The question of much more importance to the Republic is whether Kentucky should ever put her in this position to begin with.

    It’s not as though an accommodation would be impossibly costly. Just take the woman’s name off the certificate and let someone else issue it. Problem solved.

    But then what about every other case where every other public official wants an accommodation for whatever? If it’s as easily solved as this one and the conviction is clearly real, then provide it. The precedent is not so extreme; this is the level we want business to operate on as much as possible, isn’t it? Surely in the United States of  America the government should, as much as possible, set the example in allowing Americans to practice their religious faith as freely as possible. Neither the state nor any citizen would suffer any damage from providing her with that simple accommodation.

    • #85
  26. Klaatu Inactive
    Klaatu
    @Klaatu

    Jamie Lockett:

    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.

    And if we lived in a true democracy with majority rule that might matter.

    We are supposed to live in a republic where it matters.

    • #86
  27. Western Chauvinist Member
    Western Chauvinist
    @WesternChauvinist

    Jamie Lockett:

    Western Chauvinist: The point is, people making your argument are using the “just follow the law, or quit” argument because you believe the imposition of SSM by the SCOTUS to be just.

    Not only have you been around long enough to know this isn’t true I have explicitly said on this thread that I think Obergefell is a bad decision.

    Why are you lying to make a rhetorical point?

    You do not support SSM? The “imposition” was a rhetorical flourish to indicate how Christians like Kim Davis (and I) see it, I admit. But that doesn’t help your case.

    I assume if the SCOTUS decided “the law” was black slaves are still property even if they make it to free states, you would object to the law in strenuous enough terms to support any civil servant who flouted the law. Say, a law enforcement officer who decided to ignore the person’s slave status rather than arrest him and return him to his owner.

    Which goes to show yours is not an impartial view of the law wrt SSM. You believe SSM is a matter of justice for homosexuals however unfortunately the decision was handed down. Right?

    And, yes, my view isn’t impartial either.

    • #87
  28. A-Squared Inactive
    A-Squared
    @ASquared

    Leigh: Surely in the United States of  America the government should, as much as possible, set the example in allowing Americans to practice their religious faith as freely as possible.

    As I said in the other thread, the US has an express Constitutional prohibition against religious tests for public office.

    It is unconstitutional to prevent a person of deeply-held religious beliefs from holding an office.

    The question here is whether than Constitutional protection that is in the plain language of the Constitution takes precedence over the imagined constitutional right to “express yourself” in the Obergefell decision.

    Being the realist that I am, I am not optimistic for the future of religious freedom in this country.  But I’ve long argued that the SSM has long been more about destroying religion than it was about marriage.   Every passing day seems to bring more proof I was right to think that.

    • #88
  29. Western Chauvinist Member
    Western Chauvinist
    @WesternChauvinist

    Jamie Lockett:

    Western Chauvinist: I would just like to point out the irony of “libertarians” being proponents of positive “rights.”

    Again you know for a fact that this libertarian doesn’t believe marriage to be the province of government at all, but that because it is government shouldn’t be allowed to restrict it to those it favors.

    This is a restriction on government action (Kim Davis is a functionary of government) not a positive right.

    Are you going to keep mischaracterizing my positions?

    Bullocks. Applying for a marriage license is a request for government action, not a restriction of it.

    And you shouldn’t assume I know everything about each and every nuance of your position. Libertarians are not uniform on this issue. I can’t keep you all straight.

    Heh. Where’s Dime? I made a punny.

    • #89
  30. Jamie Lockett Member
    Jamie Lockett
    @JamieLockett

    Klaatu: We are supposed to live in a republic where it matters.

    A republic governed by a negative rights document that says one government bureaucrat can’t deny someone something because they have a personal objection to it.

    • #90
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