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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
You and I have had this discussion numerous times. So I guess you weren’t paying attention.
So is issuing a gun license. Should a pacifist be allowed to deny gun licenses to those that seek them?
In the case of Davis and the Quaker clerk Accommodation should be made if possible. This is the position of the Federal Courts under the Civil Rights Act and certainly should apply regarding the First Amendment. In both cases accommodating the clerks’ beliefs should be easy.
Davis objected to that solution, saying that — so long as the certificate made reference to her office (not just her name) — she considered it an abridgment of her conscience; see the second update all the way at the bottom here.
It does? Where?
What would this conversation look like if we were in a nation governed by Sharia law?
Can I just register my objection to the assumption that every Christian is opposed to SSM, or that anyone not opposed must not be Christian?
Christian clerks all over America are rendering unto Caesar the things that are Caesar’s, and signing marriage licenses without making a fuss, not because they’re cowed, but because they are okay with doing it.
For that matter, there are Christian ministers all over America performing Christian weddings for same-sex couples.
If, prior to the change in law, a county clerk in Kentucky believed strongly that her religious beliefs allowed, or even required her to issue licenses to same sex couples, and insisted on doing so in defiance of the law, would all of you be on her side? Or is it only religious freedom when we’re talking about someone who wants to deprive American citizens of what they now have a legal right to?
In the case of marriage though its not quite that simple.
Under Kentucky law they weren’t properly married in the first place because they don’t have a properly executed marriage license. This has all kinds of knock on effects for family law, probate law what have you.
It would require state action to change the relevant law, and somehow I don’t think the Kentucky legislature is amenable to that.
A right created out of whole cloth by 5 unelected lawyers in robes. I prefer the rights I defend come from somewhere other than the fertile mind of Anthony Kennedy.
None of which changes the facts. Bad decisions are still law.
See: Roe, Kelo, Wickard…
Christianity is clearly a broad term describing a broad swath of religious beliefs.
It doesn’t change the fact that this woman was thrown in jail because of her Christian faith.
My view on this case is not settled. I think it has be one of balancing of people with different views. For example, I think Davis has a case that any certificate that bears her name implies an endorsement but I think she is wrong that a certificate that simply bears the title of her office implies a personal endorsement.
There are two groups here (SSM Christian haters – Christian SSM haters) with irreconcilable views. The only way forward for our nation is to find a way live together in one country. Unfortunately, the left wants to put anyone who disagrees with them in jail.
Are they? That is the bigger question.
How is it the Supreme Court can make law when the Constitution clearly states, All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.?
I’m with Lincoln on this.
ran against the word limit.
My solution for this is very similar to my solution for many other issues – we need to rediscover the 10th Amendment and stop having the Federal Government force one side’s preferences on every one in the country.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
No, they shouldn’t. To keep with the analogy, however, this would be as if the clerk were objecting only to licenses for some weapons and that those licenses were easily available elsewhere.
While I think the clerk should be in trouble and may well be honor-bound to resign, I’d also have to question the judgement of the 2A rights advocates who — rather than get their licenses from somewhere else — decided to set an example by escalating the matter to federal court while shouting “My rights are being abridged!”
Yes. As much as I’m frustrated with the ball spikers, Davis’s apparent intransigence is definitely part of the problem.
If every federal or state law was enforced we would all be in jail by the end of the week and our jailers would also. The various government agencies can not even name the number of the laws that they do or do not enforce. This law is being enforced in this way to make a very direct point. The Feds have spoken, bend knee or be diminished.
Yes, and I am sure there are those on the other side that count on your support.
See I thought she was jailed for contempt of court and failing to fulfill her legally mandated duties.
OK, had missed that and she’s asking for a little more than I realized. Still, it doesn’t seem that far out to have it authorized by some other office. She evidently also wants an official declaration that they aren’t coming from her office. Not sure why, if they’re not, and that seems like a reach that would weaken her case — at that point she’s asking them to do something extra beyond exempting her from a particular duty.
I hate to tell you, but in my state we are the GOP. And since no one thinks the GOP is going to win California anyway, our GOP matters a lot more to the national party than yours.
But if you are suggesting that we ought to take our ball and go home in the sense of secession, well, hmm. So far, no one’s offering us the door out of the Union. And I’d be sort of afraid of what the reaction might be if that were on offer.
I understand how you are refining the analogy and mostly agree with it, however, the fact that the licenses are easily available elsewhere is a red herring. It does not matter if the licenses are available elsewhere if her actions are contrary to the law.
duties that she felt she could not fulfill as a devout Christian.
It was not her support of the Dallas Cowboys that got her locked up, it was her Christian faith and nothing else.
If the gun licenses can easily be provided without forcing the pacifist clerk to be the one to provide them, should the state not do so rather than forcing the person the voters chose out of office?
And she had multiple avenues to prevent that from happening. She was locked up for not doing her job, not because she was a Christian.
As a matter of law, I agree. Whether the law — particularly, federal court — was the best recourse here is a separate matter.
I don’t presume that I can tell someone of a different faith what their faith requires.
I already said above that I disagreed with her in part, but that isn’t part of this discussion. You can spin it however you want, in her mind, she was locked up because she refused to abandon her faith.
We can’t have religious test that says you are allowed to hold this office if you are willing to surrender a particular tenet of your faith.
Yes but that is water under the bridge at this point.
But as a libertarian you would surely agree that when someone’s actions are contrary to the law we have to consider whether the law is flawed, as well as the actions? Long-term, what serves freedom and the Republic best? What Kim Davis does is a matter for her; what the law does is a matter for all of us.
Recognizing that there can be cases where it would be untenable to do so, I would argue that as much as is remotely possible we should go out of our way to avoid having the law force people into such positions.
Actually, her actions are completely consistent with the laws of the Commonwealth of Kentucky.
I didn’t mean to get into this discussion. I’m already past my “Sell by” date on Ricochet, so I will have to leave the discussion to my betters.