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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
Yes, but the laws of Kentucky are in violation of the supreme court’s interpretation of the federal constitution, which contains the Supremecy Clause.
You and I agree that the SCOTUS opinion is bullocks (it is) but it’s still the law.
I guess you forgot about the supremacy clause. You should talk to our resident constitutional scholar Professor Epstein.
Yes of course we wish she were a fusion of John Eastman, Ryan Anderson, and Carly Fiorina.
There’s been a lot of muttering on the Christian interwebs that this is the wrong person, at the wrong time, with the wrong issue.
Which raises the questions: When is the right time? Who is the right person? What is the right issue?
This was discussed very well by David Murray in a piece We Don’t Get To Choose Our Martyrs
Here in Maine, the law was changed by the majority of voters in the state. So would it be okay to “jail the “Christians” in Maine?
Whether Kennedy should have been paying attention to public opinion or not, the fact is that, as of the time of the Oberfels decision, 63% of Americans in a CNN poll said they believed that SSM is a constitutional right, up from 49% a mere five years earlier. While I suppose it’s possible that SSM will be repealed, for the moment not only is it the law, it is a law supported by a growing majority of Americans.
Yes, there are ideologues who insist on creating drama by baiting florists and bakers, and I have a lot of sympathy for the business owners in those situations. The couples in question could, indeed, go and buy their cakes elsewhere, but why on earth should a citizen of County X have to schlepp to County Y to get a wedding license because Kim Davis refuses to do the job (or let anyone else do it for her) for which the taxpayers (a category that includes gays and lesbians) pay her?
Incidentally, though no one answered the question, my very strong guess is that if, prior to Oberfels, a county clerk had begun issuing marriage licenses to same-sex couples, explaining that this was required by her conscience and by the dictates of her religion, y’all would probably not support her. “It isn’t about her religion! Her job is to issue licenses in accordance with the law of the land, not according to her own beliefs!”
And her weight, her diction, her personal history and her hair-do, not to mention her “cankles” would all be fair game.
I just checked out your bio. First off, why are you leaving us, even temporarily? No, no, no, please don’t go.
Second, your bio rocks.
Tom and Jamie,
The Supremacy clause reads, This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding..
I see nothing in there suggesting Supreme Court rulings are the supreme law of the land. The Constitution details the process by which the laws of the United States shall be made in pursuance thereof as well as how treaties are made (as other posts here on Ricochet can attest) but nowhere in either process is the Supreme Court involved.
Kate if this case were in Maine, the issue of Maine’s law might be relevant but it isn’t.
The people of Kentucky were quite clear in their desire.
FWIW, our system is premised on the rights of man coming from God, not Anthony Kennedy or opinion polls.
Or Kentucky could assert the 10th Amendment and tell SCOTUS and the federal to bug off.
Obama would love that and try to send the U.S. Army into enforce same sex unions.
Then it would get interesting.
I realize you’re doing a schtick, but I keep seeing this and it annoys me. I have friends in Rowen County. I haven’t asked their view on the matter out of courtesy. But they’re good people and ought not be insulted.
And I have nothing else to say on the matter that I have not already said.
I’ll see you all at the hanging. Or in the crowd, as the case may be.
It depends on the law of the land. the Kentucky Constitution is clear on the matter.
I am fairly confident that when she is finally called home St. Peter and Christ will welcome her home as daughter. Great points all.
If you’re objecting to the concept of judicial review rather than Obergefell as an example of the abuse of that concept, then that probably deserves its own thread.
Congress has made no law requiring marriage licenses be issued to gay couples, and the State of Kentucky has a laws barring the issue of any such license.
The Supreme Court has stated it’s opinion that such laws are unconstitutional, but the legislature of Kentucky has not issued any law to replace them. The Supreme Court has no authority to issue laws or change them, only opinions on laws and how judges should interpret them in cases before the courts. It is up to legislatures to change laws.
Kim Davis would have been overstepping the authority of her office by issuing marriage certificates to couples who were not comprised of a man and a woman, because that is the only formula for marriage under Kentucky law. Application of the Supremacy Clause would result in no marriage certificates being issued to any couple, since there is no valid law on the books to empower the clerk to issue them.
The Federal Court has issue with the State of Kentucky, not Kim Davis. She did not break any law.
I have not yet read through all of the replies (and probably won’t), but I continue to read people refer to Ms. Davis as a bureaucrat. She is nothing of the sort. Clerk of the Circuit Court is an elected Kentucky Constitutional Officer position. This is not the role of some hiree off in administrative bureau, but is a position required by the constitution of the Commonwealth for the administration of the Commonwealth’s laws, similar to that of Governor, Representative, Senator, or Sheriff. Criticize her if you like, but calling her a bureaucrat is ignorant.
I don’t think he’s objecting to judicial review, he’s questioning its meaning.
When the Supreme Court overturned sodomy laws, that ruling made it impossible to prosecute anyone for sodomy, because to do so requires a court to convict the defendant. So the law was effectively void, because there’s no way to convict a defendant except In courts, which had to uphold that precedent. But that decision, and others like it, in order to be effective, doesn’t require other branches of government or states to DO anything. On the other hand, Obergefell, and other similar cases, do. They order states and other branches of govt to do this, that, and the other. That’s the issue: the extent to which courts can require other branches of govt to actually take certain actions. If they have unchecked power to do so…meaning checked by no one except themselves…then what does separation of powers mean? This is the real issue which makes the incarceration of the clerk problematic.
Thanks. My membership expired on Monday, and I’ve been planning on letting it expire for a while now (e.g., I updated my bio in July so it would be there after I could no longer update it). I think it’s time for me to take a break from Rico. The fact that I just logged in today and see if I could still comment and got dragged into this same SSM vs Religion catfight for the 47th time is indicative of why a break is a good idea for me.
I have other reasons, but I hold no illusions that anyone cares what they are. Besides, I’m sure Rico will be improved by my absence.
No, I’ve always found your contributions worthwhile and thought provoking even when I disagreed with you. I hope you don’t go, but you’ll be missed if you do.
Not judicial review necessarily, judicial supremacy.
Well, we only care what they are because we want them to go away. And no, Rico will be the poorer for your absence.
I hope that you will change your mind. Lots of people go away and eventually return, so maybe, even if you must leave for the moment, you’ll be back. I’ll cherish the hope, anyway.
Me, too! Besides, aren’t we supposed to have a conversation about Ghettocide and Conservatarians?
A) I still haven’t finished the Ghettocide book (I put it down when you went on hiatus for your book which is much more impressive than anything I will do with my extra time); and
B) I don’t have a lot of nice things to say about what I’ve read so far (I’m 3/4 of the way through it).
I will commit to finishing it before I re-up.
I can do no better than to quote the following:
http://spectator.org/articles/64005/short-route-chaos
Do your job, and advocate for something off the clock. Much like it isn’t the Supreme Court’s duty to create laws from the bench, (though they do it anyway) it isn’t Mrs. Davis’s job to adjudicate morality when the Commonwealth of Kentucky is paying her to distribute marriage licenses. Regardless of her personal definition of the institution, marriage has a different definition now. I empathize, but I do not sympathize.
Cannot agree. If the licenses are easily available elsewhere, then that ought to qualify as a “reasonable accommodation.”
It may or may not be morally wrong, Wiley. If a law is unjust, then not only may you fail to obey it, you must not obey it (e.g. Jim Crow laws). It is illegal, of course. And so, as has been said, you take the consequences.
The intention of civil disobedience is generally not to request or force a personal exemption from obedience to the law in question. Rosa Parks didn’t want a special dispensation that allowed her personally to sit where she wished on a segregated city bus. Presumably, Kim Davis wishes to roll back SSM, not merely to be quietly excused from participating in an aspect of her job that conflicts with her own religious beliefs.
I don’t know, MJ. I think this works for florists and photographers, but if I went to my local DMV, and the guy behind the counter refused to give me my driver’s license because, as a good muslim, he believed that women shouldn’t drive, it would really irk me to have to go to the next town over to accommodate his religious sensibilities.
Not that the next town over is all that far away, but because I’m a citizen, living my life in accordance with the laws of the state, and it’s his job to provide licenses according to these same laws. Not of his God, or nature’s God, but the laws of the United States as they have been promulgated and interpreted by those with the power and authority to do so.
On another thread, there’s a bit about a couple of muslim men who were fired from a trucking firm because they refused to deliver alcohol. Okay. I can see making some attempt to accommodate them—try to give them runs without alcohol, say. But at some point, if delivering crates of booze is the job, and your religious beliefs prevent you from doing the job…then you have to find another job, don’t you?
Kim Davis is a Kentuckian, who was elected to her office by her fellow Kentuckians (a great majority of whom in her county are evangelical Christians) , to uphold the laws of marriage passed by Kentuckians. She is not forcing her views on anyone. She is *upholding* the views of her constituency, which some believe is a fundamental obligation of our civil servants.
Let’s face some facts. There are large political blocs in America who are NEVER going to accept the moral equivalence of same sex unions with traditional marriages. And they have all the same rights to self-determination and influence upon the formation of their society as you do. To expect them to lay down and accept the progressive/libertarian utopia is wholly unreasonable. The right thing for the Supreme Court to have done would have been to put the issue back to the States and let the debate happen locally and organically in the hopes that a workable middle ground could have been found. The Obergefell ruling is a deeply flawed ruling. It’s a law without legislation, and it needs to be challenged at every turn. I think the Kim Davis’ situation presents a rational test.
Under the principle of federalism established in the Constitution, there is a realm where the States are supposed to have the right to decide on issues independent of Federal influence. Education and marriage are two of those whose nature and character have always demanded that states and localities have control over the laws under which they are governed. The dissenting justices in Obergefell said as much.
If the voters of Kentucky feel their right to legislate their own marriage laws has been unconstitutionally usurped by the Federal Judiciary, in a realm in which their own will should have had sovereignty, then it is rational to expect civil servants who were elected to implement the laws of the state of Kentucky disobey the Federal law and adhere to the State law that prevailed when they were elected. The Federal government is not the highest authority. GOD is. The Federal government has a place, and that place is not to intrude into every domestic sphere and trample upon the rights of States to legislate themselves.
Big Ern: Let’s face some facts. There are large political blocs in America who are NEVER going to accept the moral equivalence of same sex unions with traditional marriages. And they have all the same rights to self-determination and influence upon the formation of their society as you do.
That’s fine. No one is asking Kim Davis to accept the moral equivalence of same sex unions, or post-divorce unions, or any other kind of unions. No one is forcing her to enter into a same sex marriage, perform a same sex wedding, attend a same sex wedding and no one is forcing her to sign marriage licenses or warmly smile while doing so.
Possibly, but did Kim Davis actually ask the voters whether they wanted her to obey the law or not? That is, if she ran for office as the “I’m only going to follow the laws that I, and y’all, approve of!” candidate, maybe her behavior could be seen as, in some sense, an expression of the will of more than just Kim Davis?
I think that Jamie’s right that they present the same issue; the novelty of the licenses doesn’t seem legally meaningful to me (I’d be happy to be corrected on this).
Rather, as Volokh admirably lays out, the question is one of reasonable burdens; if the government can accommodate Davis’ religious liberty without placing them on someone, it has a duty to do so. I’m not sure what burden would be placed on people getting married if their license has some alternative notation to “Kim Davis” on it.
Likewise, if a Quaker clerk wanted to have someone else in the same office handle gun licenses because issuing them violated their sincerely held religious beliefs, and no significant harm was caused thereby, I’m fine with that Quaker not getting blood on their hands, not even varmint blood or trap viscera. My understanding is that the Constitution is fine with that, too.
As Volokh notes, you can’t say “someone in the next county will handle that”, but so long as the county can fulfill its duties in a prompt and professional way (not what happens in the gun license areas that conservatives rightly complain about), we should allow government officials to let their godly flag fly.