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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
As a thought experiment, what if the federal government had nothing to do with it, that there had been no Supreme Court decision, and that it had been the legislature of Kentucky that voted to legalize homosexual marriage.
Would you support Kim Davis’ refusal to issue marriage certificates under those facts? Would her religious objections supersede the will of the people of the state of Kentucky as expressed through their legislature (in my hypothetical)?
I agree with your implied suggestion that there’s nothing in Christian theology that demands that we avoid recording non-Christian activities. In my view, Davis is 100% wrong on this issue, and she should realize that and get back to work. That said, while she doesn’t realize that, she shouldn’t lose her religious liberty rights. If religious liberty merely means the right to obey God’s properly understood commands, then it’s just another way of referring to the establishment of the Eastern Orthodox Church. Religious liberty was explicitly intended to allow for members of minority faiths that every reasonable person agrees gets it wrong. UUs have, in the past, been somewhat vocal about this, and not always for entirely selfless reasons.
From what you know of Kim Davis and her voters, do you believe that it was unclear what her position on the issue would be? I stand with Burke on the question of whether elected officials owe their judgment or their obedience, but it seems likely to me that she was elected by people who wanted someone like her, because she appeared to be the person she was. That’s not a defense of her or her voters (obviously, had they been sensible, God fearing people, they’d have voted Republican), except with regard to the question of whether she could have a reasonable sense of their view on that question and whether they were on reasonable notice of her views.
Silliness. Now I can’t read the other 8 pages. Can we remember religious freedom and the rule of law? The judges edict was simple grandstanding, not law making, which they can’t do anyway. This case is so simple. There is no way a constitutionally based law would ever impact this woman. Hail the LGBT fascists. I’m sure I’ll hear about how simple I am.
Thanks, Mr. Prawn. Now I can suspend reading the rest of these comments because you’ve made the correct point. Christians formed our union and are now uninvited.
Some people put marriage in quotes: “gay marriage”. When I don’t think it’s a genuine case of religious freedom, I do the same: “religious freedom”. No law would impact this woman if she hadn’t put her own opinions above the US Supreme Court, she wanted her so-called “martyrdom” and she’s the one who mounted an actual grandstand when she made her retreat. She’s never going to get any pity out of me.
Don’t let me put you off the other 8 pages, TR. Like the other 5,555 threads on “gay” subjects that have come from your side, it’s stacked with people who agree with you. You’ve expressed yourself very forcefully more than once about the issue, which I don’t think you’d do if you really felt that “fascists” are after you.
I don’t think you’re simple at all, TR, just wrong on this. Can you handle being disagreed with on a conservative web site, or is that “fascism”?
Marx claimed that Communism would lead to a classless society. His followers have demonstrated time after time that they have no class. The Davis case is merely the latest example.
In your hypothetical, the voters of her county could demand a recall, or the legislature could issue articles of impeachment if they believed Kim Davis was out of order. That’s what should happen here (if they believe she is out of order).
Kim Davis, in her capacity as an elected official, has both a right and a duty to refuse any command from the government that she believes is unjust or unconstitutional. Her constituents and legislature have the right to depose her from her office if they disagree.
Do you feel the same way about speech? If the government required speech condemning communism of elected officials, in a form that was not necessary to their performance of their roles, would you say that an official who refused to condemn communism wouldn’t be impacted if they didn’t choose to make themselves a martyr, and thus disparage the right? If it was clear that they wanted their so-called martyrdom (which, lets face it, lots would, and have in the past), would that make it okay for the government to compel their speech? Would you refer to the right as “free speech”?
In this instance she’s not infringing anyone’s rights; wherever you stand on SSM, she’s not asking to stop people from getting married, she just wants her name off the license.
If she was, though, would that impact your analysis?
If, for instance, you were a policeman and you agreed with most of the criminal procedure professors I’ve talked to about it that Miranda is a bad decision (current self incrimination case law bears very little resemblance to what the founders envisioned), would you feel that you had a duty to refuse to obey it?
If you thought, as quite a lot of federal employees did, that Gore really won the 2000 election and that Bush’s laws were hence illegitimate and Constitutionally invalid, would that mean you had a duty to pretend that they didn’t exist?
I am really getting tired of hearing about Kim Davis. Can we just fire her, lock her up and destroy her life so she can be made an example of and be done with it. We all know that is where this is going so let’s just get it done and move on.
She’s got free speech and always has had it. She doesn’t have personal freedom to determine which parts of her job she will and will not do. Her pro-forma signature on the license is no more meaningful than the treasury secretary’s on a dollar bill. The comparison to compelling communism is obscure to me. SSM=communism? Come on, James, that’s a bit over the top.
It was an analogy. I know that she’s not having trouble with her free speech rights. She’s having trouble with her free exercise rights. I was asking you if you felt the same way about speech as you do about religion. I am fully aware that none of the facts in the analogy apply to Davis. If you find communism unduly exciting, please substitute your own form of compelled speech. If you find speech in general unappealing as an analogy, substitute a constitutional right of your choice.
You might not find her signature meaningful, but there are lots of our rights that are protected despite our betters not finding them meaningful. There are folks who get to keep their home despite their being offered another, even nicer, home if they let the developers take their current home. There are folks who get to sacrifice animals in cruel ways despite a law saying that they can’t and despite everyone knowing that that stuff is hogwash. There are folks who get to not salute the flag during a pledge of allegiance, although you and I know that it’s a pretty meaningless act.
If it’s meaningful to her, that’s enough.
She doesn’t get to pick and choose which bits of the law she follows, unless those laws Unconstitutionally infringe on her rights, in which case she can work to have an accommodation reached, which is, as I understand it, what she has been doing. So, for instance, although there’s no Constitutional right to the legal benefits of an NLRA union, she does have the Constitutional right to associate with her colleagues to form an unofficial union. If there’s a law that prevents that, she absolutely gets to choose to challenge that law rather than following it. Now, again, I’m not saying that she did want to form a union; this is more analogy.
Going outside the First Amendment, if the law says that she must be drug tested without an individualized suspicion, she would get to challenge that rather than simply obey it.
The Constitution gives Americans a surprisingly broad scope to protect themselves from government oppression. Whether we like the person claiming oppression and whether we feel that the oppression is particularly meaningful are not generally really relevant to whether they have a prima facie case.
If an officer had a deeply held conviction that it was a violation of his rights, sure. There are mechanisms for removing an officer who blows convictions, though.
First, neither Bush, nor any other President, makes laws. Second, yes they may chose to pretend the laws don’t exist, but do face legitimate removal from office by the proper procedures. This isn’t what we have in Davis’ case. The Federal court brought a case against an agent of the State of Kentucky as an individual for enforcing Kentucky law, when in fact it should have brought suit against the State or county.
It then threw her in jail for upholding a State law as it stands, when there is no law requiring her to do otherwise.
Would the judge have the authority to arrest the entire Kentucky legislature for failing to change the law to comply with his order? Why or why not?
Presidents issue executive orders.
Are you really saying that if as a policeman you disagree with Miranda, you have a duty to get fired?
If a policeman knowingly violates Miranda because he disagrees with it, he will also get sued in a personal capacity. It’s not so different.
Current state law in Kentucky supports SSM. Davis doesn’t dispute that, as I understand it. She just wants to be free of personal taint.
James, I think this falls under the same rubric as my earlier facebook comment about treaties. Everything you are describing, I imagine, you think of as saying “look, we do this all the time, it’s no big deal.” What everyone else is hearing is “we do this all the time? WE DO THIS ALL THE TIME?! How much else are we doing that is blatantly illegal and illegitimate and I’ve never noticed because we do it all the time!?!”
Certainly this is the reason that the single best argument against open rebellion right now is “you’d lose” not “we’re following the law as intended.”
I’m not asking about the power to impeach or recall. I’m asking if you support her actions when the law she is refusing to obey was promulgated by the state legislature or popular referendum and not the federal government. I’m trying to unpack the federal-state issues from the “duty to enforce” issues.
Or, to put it another way, would you vote to recall her?
It would seem odd to me that the people who voted for same-sex marriage would want to allow a particular official to refuse to disobey the law.
This is an interesting example. Would the analogy be like the Treasury Secretary refusing to allow certain people to carry cash because they might spend it on drugs or prostitution?
I agree with this. The religious liberty arguments have always seemed hollow to me and your example here exposes why. They probably made sense when our culture shared a common definition of freedom, and when there wasn’t such a wide cultural division about our anthropology.
Definitely! And I’m all for Kim Davis’ religious freedom.
If a conservative Catholic was voted into Davis’ office by a majority of her conservative Catholic constituency, that county clerk could find her conscience deeply troubled by the issuance of marriage licenses to persons who have been divorced not once but three times.
There is a strange absence of empathy for the gay and lesbian couples in this thread. Being refused a license would be an upsetting experience. Driving to the next county over, waiting in line, asking the next clerk humbly if she would do you the great favor of granting what it is your legal right to obtain and then waiting to find out whether she, too, is the kind of Christian that includes publicly humiliating people among her sacred duties… this is not a small accommodation at all. It’s a substantial burden.
I’m pretty sure that most Ricochetti are not surprised by the existence of executive orders. It’s possible that some think that they’re a modern thing, rather than a tool that Washington used, with the most consequential one (the Emancipation Proclamation) having been issued in the first half of our nation’s history.
But the reason that open rebellion is bad is because it would replace the American government with some other kind of government. Look around the world, and you will find other kinds of government are inferior to the American kind. Also, survey a brief perusal of revolutions and you will find that, America’s providential revolution aside, they do far more harm than good. Even America has a somewhat mixed record; 1776 worked out well, but most rebellions have not. The largest effort to secure states rights and protect slavery was particularly unsuccessful in achieving its aims, and came with a non insubstantial transaction cost.
Wasn’t it a private citizen who sued her for not issuing a license? While I am sure the federal government would have jumped on that bandwagon, (I confess to not having read the link posted in the op) if she was sued by her constituents for failing to issue a license in accordance with her duties, isn’t that different?
Obergefell was a terrible decision, but it is only the latest in a long line of bad decisions to come out of the Supreme Court. If the state of Kentucky wishes to appeal this under the 10th amendment in order to affirm their state’s right to regulate civil marriage, then I absolutely think they should do that.
But absent that, if Kim Davis’s signature is required on all marriage licenses issued, pending the appeal she needs to comply. And requiring people in her county to go to another county is not my idea of accommodation. She is not giving her approval to same sex couples by administering paperwork required by the government.
I agree that that would be a pretty clear issue. My understanding is that Davis is not wanting to deny anyone their marriage licenses, or to demand that they travel a county over, either of which would represent substantial burdens. Rather, she simply wishes to avoid having her name on the license.
Does that seem like a great cruelty to married couples? While I agree that she should not be allowed to humiliate people, it does not appear to me that a marriage license with a rubber stamp rather than her signature would be humiliating to most people.
Who do you think they should appeal to?
Doesn’t the Supreme Court sometimes take cases that are similar to ones that were already decided in order to refine or revisit their decisions from other angles? Wouldn’t a state have a right to appeal to the Supreme Court based on a Constitutional issue?
As might be obvious, I am not well-versed in the appeals process or anything, but I am pretty sure I’ve seen the court reverse itself or (more likely) re-affirm a previous decision to which a challenge has been raised. If the Court refused to hear the case, that would be the equal of a reaffirmation of the decision, correct?
My opinion on Davis is simple. Her stunt is harmless, but may have a small positive impact on religious liberty (at the very least judges across the country might hesitate a little before attacking religious people). Thus I support what she is doing on pragmatic grounds. That said, I really don’t like the woman.
When has empathy ever entered into politics? The only time people show empathy is when they want to cast their opponents as evil.
If I was engaged to a man and I lived in that county, I would happily drive to the next one over if it meant I could live a decently religious life with my husband. Religious bisexual and gay people may not get along with religious heterosexuals, but we don’t exactly fare better with the secular left, either.
If you think religious persecution is just enlightened elites holding down those nasty, uneducated, heterosexual, [insert stereotype here] hicks, you are sadly mistaken.
I don’t think that all the ratiocination that has been provoked by this case has been worth it.
If it boils down to her not wanting her name on the certificates and nothing more, than she is the one making a mountain out of a mole hill. That has zero to do with her free exercise of her religion. Her religious convictions and her government job don’t give her the authority to tell the citizens of Kentucky how they must live.
No one is telling her what to believe. She is not being compelled to personally approve of the Godliness of same-sex marriage; she is not being asked to attend the wedding; she is merely being asked to sign that the marriage is valid according to the laws of the United States and the state of Kentucky, and not according to God’s laws, which, contrary to some comments above, are not part of American law. My God may have very different laws from yours. Hence, the 1st amendment.
If she can’t in good conscience bring herself to perform the duties of her office then she should resign, and let the authorities go after real miscreants who do belong in jail, starting with Hillary Clinton and the Mayor of San Francisco.
I wasn’t talking about politics, Joseph. I was talking about this thread.
But since you ask, empathy does enter into politics, at least in the sense that political issues and those that press them ask us to imagine ourselves in the position of those whose specific plight we do not share—e.g. Iraqi civilians groaning under the yoke of Saddam, poor people yearning for a Great Society, same sex couples wishing to assume the rights and responsibilities of married persons, Christian bakers beleaguered by masses of betrothed lesbians demanding cakes.
Liberals are insufficiently empathetic and imaginative when it comes to the Christian bakers, but I’m not addressing myself to liberals at the moment.
Good name for a rock band?
Has anyone else seen this article, 10 Questions For Rule-of-Law Critics Of Kim Davis at The Federalist?
I thought the most troubling point in the article boiled down to this: If, as some Christians suggest, we should wait for a cleaner and more morally pure case before we make a stand, “How will we have anyone left to fight [for us] if our elected officials resign to protect their consciences? . . . Or, to come at this question from another direction, if, as Dreher supposes, we’re entering an era where we have a de facto religious test for public office, why would we not choose to have the fight now, when there are still [orthodox Christian] lawyers, judges, and politicians in positions of authority and influence? Why wait until the ranks have been thinned by the American Bar Association, or by lawsuits like the latest from Oregon?