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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
I don’t see how a person can make a big deal about Kim Davis and then go all quiet when Muslims want what they want in all aspects of public life, or when Christians are the ones on the receiving end of the discrimination.
It’s one thing for an employee of a private company to be able to make the argument that the accommodation he is asking for is reasonable and will not impose an undue burden. It is another thing for a public official to bring her religion to bear on her performance of her duties in such a way that she feels compelled to discriminate against some citizens for the simple reason that her religion does not approve of their conduct.
Even having to wait 10 minutes for another clerk to come over and provide service is too much when we are talking about the government.
As one of those rule of law critics (though a mild one), the great issue is that we are forced to contemplate meeting the subversion of the rule of law with our own subversion of the rule of law -and as James points out up thread, this is a dangerous game to play.
That depends on the relevant Kentucky law re: marriage licenses. If it is required that the clerk in each county sign off on the license then people could find their marriages challenged legally later on. Say if an employer doesn’t want to cover a spouse for benefits. Or a brother wants to lay claim on an estate that should be passed to a spouse. There are all kinds of knock on effects from her decision to defy the law.
Again, Davis’s request was that the certificates mention neither her name nor her office:
As I started it this one, and stipulating below that I am not making a legal argument…
I have sympathy, but it’s tempered by the fact that SSM has won a spectacular series of victories culminating — sadly — in one based on a lousy SCOTUS case. Given that and the relatively minor, one-time manner of the inconvenience, I’m think some restraint is in order.
What is ironic is, the opposite is happening. Gay couples are flying across the country to show up at the Rowan Country clerk’s office to make a “statement”.
Link
I’m willing to bet there have been 10 times as many people from California flying to Rowan Country to apply for a license they don’t want as there are gay couples actually living in Rowan Country that have been denied a license and had to drive to the next county.
The Kim Davis issue infuriates the left because it reminds the gay lobby that even in victory, their victory will never be like the victory over legalized racial discrimination. What politician today would go comfort someone in jail who refused to issue marriage licenses to interracial couples on the basis of Aryan religiosity? While racial discrimination is not tolerated at any level of society, the left realizes that huge segments of the population will continue to openly reject same sex marriage and homosexuality as sinful, illegitimate or perverted, and that their doing so will mainly draw nothing more than eye-rolling from those who don’t agree. If a politician is secretly taped making racist comments, he’s probably done. But any politician can come out openly against same sex marriage and not risk their career. This lack of equivalence between the two issues is the burning fire that will continue to motivate the gay rights lobby even after they have achieved their legal goals, and will necessarily threaten the liberties of average people as they attempt to shame society at all levels into compliance.
Right; she’s asking for an accommodation that would mean that the marriages would be validly recorded without her name. Obviously, if there isn’t a legal accommodation, she can’t just not sign, because that would be a tremendous burden. If the law is changed, either as part of an injunction or through the legislature, this won’t be a problem.
It’s true that in the interim, she’s refusing to sign licenses which do require her signature, and that does represent a real burden. The fault there lies chiefly with the judge and the governor failing to respond promptly and effectively to resolve the issue, though. It’s not really something that Davis can adequately respond to.
You’re right; that is a marginally greater request. I think that we’re on the same page about it being a perfectly feasible alteration for the legislature or the courts to make, though, and that this controversy could have been over quickly and painlessly if we had had a better judge, and fewer people on both sides eager to profit off the controversy rather than resolve it.
Provided it was legal and didn’t have the knock-on effects Jamie is talking about? Then sure. Still, if I were required to provide certification of an act I am morally opposed to, I wouldn’t want my name on the certificate whether it was signed or stamped. So I’d have to resign. Which, incidentally, is a perfectly respectable, honorable and even dramatic way for an official to signal extreme disapproval of a law or policy.
When the cake-bakers refused to make a cake for a same-sex marriage, they were respectably and honorably depriving themselves of income. They were, in other words, willing to sacrifice for their beliefs. Given that the couple in question had friends and supporters to whom they might complain, the bakers risked losing quite a lot of business. Given that, I’m inclined to think that people who go out of their way to tweet and otherwise harass Christian business owners who have respectfully declined to bake a cake for a gay couple are in the wrong. But a county clerk is not a baker.
Even then, it should be understood (IMHO) that religion, by definition, demands sacrifice, and sometimes the sacrifice is a whole lot more than the price of a cake. If you can’t work on the Sabbath, or you can’t touch an unrelated person of the opposite sex, if you have to fast during certain periods, or get down on the floor and pray five times a day, abjure violence or grow a beard down to your ankles— there are jobs you may not be able to do. On the other hand, you’ll have God’s approval, which is supposed to be sufficient reward, right? Treasure laid up in heaven, and so on?
Since one does, in theory, choose the religion one follows, and since Americans often change religions, or change the intensity with which they follow it, this is bound to be a very vexed question.
Of course they are. But presumably there was an original gay couple who was refused a license, or no one would ever have heard of Kim Davis.
Very much so.
Obergefell itself can not be appealed, but it is true that a different case might come up in the future that overturned the ruling in Obergefell.
That doesn’t happen often, though, and it generally takes a long time. In this instance, it would need the public conversion of one of the judges, which seems unbelievably implausible to me.
If we win in 2016, and we replace Ginsburg with a conservative, then we might want to see a state passing a law that would be struck down as unconstitutional, giving rise to an appeal that the Court could hear, but that would really be the first opportunity.
Bob it took a long while in many places for the Loving case to be fully accepted.
According to Wikkipedia: Local judges in Alabama continued to enforce that state’s anti-miscegenation statute until the Nixon administration obtained a ruling from a U.S. District Court in United States v. Brittain in 1970.[14][15] In 2000, Alabama became the last state to adapt its laws to the Supreme Court’s decision, when 60% of voters endorsed a ballot initiative that removed anti-miscegenation language from the state constitution.[16]
This bears repeating: In the year 2000, at the dawn of the 21st Century, only 60% of Alabama voters thought maybe it was time the state constitution removed language explicitly forbidding white people and black people from marrying one another. “What politician today would go comfort someone in jail who refused to issue marriage licenses to interracial couples on the basis of Aryan religiosity?” Well, if the politicians follow the people, forty percent of them might have been inclined to do so a mere 15 years ago.
You wouldn’t have to resign if you had a Constitutional right not to sign. If Davis wins her case, which seems plausible to me, she will have achieved an arrangement in which Jamie’s knock on effects do not arise, and both the Constitutional rights and the personal dignity and happiness of both married couples and county clerks are preserved. It’s taken longer than it should have to process, but that is not primarily Davis’ fault, and I would have thought that you would view the end result as a positive one, earnestly to be desired.
It is true that the legal issues are different; Davis cannot turn couples away as a permanent measure, and the contempt of court ruling seems sound. It also seems, frankly, nuts. I cannot think who benefits from her jailing, other than the opportunists and profiteers. There appears to be no deterrent, retributive, rehabilitative, or other valid motivation. Also, the ruling that she was in contempt of was terrible. Nonetheless, awful judges get to enforce their awful rulings until they’re successfully appealed, which looks like it will take some time in this case.
Since you’re referencing gay dignity and such, it seems worth noting that Davis is doing what she can to preserve gay dignity through this patch; she’s temporarily refusing to issue licenses to heterosexual or homosexual couples. Her actions are motivated by animus, but there is, so far as I can tell, no disparate impact or facial discrimination.
This is how I feel about it. I’m a Christian who believes the Bible speaks against SSM. But I also believe that the government and its agents should not be promoting/endorsing a particular religious viewpoint, especially if it happens to violate what has now become the law of the land. She’s not marrying them, she’s verifying they have complied with the legal requirements to have a marriage recognized by the state.
Since there doesn’t exist a reasonable legal accommodation for her to let someone else issue the license, and since the state doesn’t seem inclined to fight the ruling, she should do it. Jail is a bit excessive and I think there were probably other alternatives, but Kevin Williamson points out that all laws come with the ultimate threat of violence or loss of freedom.
No, I would not vote to recall her, because I believe she could be reasonably accommodated. Her objection is to her name or office being listed as certifying that two people are eligible to marry, when she does not believe that they are.
She has stated that she would be satisfied if another officer was willing to certify their eligibility, and there are already laws on the books to accommodate such requests. The State and county can change the phrasing of the paperwork and authorize another officer to sign it when necessary.
Executive orders are binding on the executive branch. An executive order cannot bind the Judiciary, nor the Legislature, and both can overturn it.
If a police officer has a deeply held conviction that he must not inform a person being detained of their legal rights, he has the right to do that, but he will be fired, and there will be no conviction. He even may be personally sued, because it is a bone fide job requirement that he has agreed to perform.
Davis has been ordered by a federal court to act outside the law that grants her authority to act. She has stated that she will not allow documents to go forth with her name and office on them certifying two people are eligible to marry who she does not believe are eligible.
Current marriage law in Kentucky is either entirely opposed to SSM, or nullified by the SCOTUS. There is no legislation authorizing SSM. The governor said the state will comply with Obgerfell, but he does not make the law.
It does not compare. The Treasurer’s signature certifies that the bill is “legal tender for all debts, public and private.”
Kim Davis’ signature would certify that two people are “eligible to marry,” when she cannot in good conscience make that statement.
***Broken record warning***
Just as I’ve been arguing for years before Obergefell, the same is still true: we need to sort out what marriage is before we can sort out any of these issues coherently.
Is marriage one indivisible whole? Or do we apply the word marriage to different things?
Executive orders are binding law that the judiciary respects. Korematsu, one of the most famous SCOTUS cases, saw them doing exactly that. Perhaps more topical is Dames & Moore v. Regan in which the Court ratified Reagan’s releasing Iranian property after Carter allowed it to be frozen or attached on the basis of Reagan’s executive order.
I’m not sure what “right” means in this instance. What would be the difference if he didn’t have that right?
Davis is not contending that the laws of Kentucky do not require her to sign. She openly acknowledges the secular legitimacy of Gov. Beshear’s directive except inasmuch as it infringes on her Constitutional rights. She feels that she is bound by a higher law.
Right, but she’s not making a legal argument that they’re ineligible. This is a free exercise case, not some sort of sovereign citizen argument.
Sure, he does. His directives are legally binding within their sphere of authority, which is why Davis was litigating against him, and why she lost. I think that the court decided that case wrongly on free exercise grounds, but so far as I know there is no argument being made that Davis’ directive was not procedurally and substantively sound on a secular level, whether by Davis or by Amici. He has a pretty limited scope, but the manner in which marriage licenses are processed is exactly the sort of law that is appropriately handled by the governor, even if his decision in this instance was terrible.
Kate, you point out how slow people were to accept racial justice. This is true. My point is that, from the viewpoint of the gay lobby, it will be much much worse. Five hundred years from now, the Catholic church will not be marrying gay couples. And it’s unlikely that even then will they be scorned and called bigots for their refusal to do so.
Just a note -this would depend on the state. In some places an order like this actually would be beyond the governor’s power. Kentucky just has a very strong governor and a lot of prohibitions on the legislature sitting more than 90 days every 2 years.
They are already called bigots, including by some on Ricochet. Rob Long famously said on a flagship podcast that Peter Robinson wasn’t homophobic only because Peter disagreed with the pope on something or another, implying pretty strongly that any Catholic that agreed fully with Church doctrine was indeed a homophobe.
I think the leviathan is going to force both organized religions and individuals to embrace whatever the government wants them to embrace and the Catholic Church will eventually cave.
Remember, the government runs our schools, and our future children will be indoctrinated into believing what the government wants them to believe. After 500 years of indoctrination, a lot can be accomplished.
I agree that there is considerable diversity in state constitutional frameworks, but I’m not aware of one in which the Obergefell implementation was conducted by a legislature. Do you have one in mind?
The court should have thrown out the case against her as an individual and required refiling. The charge should have been leveled at the county, since the complaint was against an agent acting on behalf of the government of the county. The shield of Agency can be waived in cases of gross negligence or malicious intent, but I cannot see how these standards would be met by an officer who has a religious objection and is not technically in violation of any enacted law.
The 10th Amendment restricts the jurisdiction of the Supreme Court. If an appeal is made to the courts, you’ve already lost on 10th Amendment grounds by ceding them jurisdiction. The 10th gives the States the right to tell the Federal Government that its opinion on non-enumerated areas is irrelevant. It’s just that no State has ever actually exercised this right in modern history.
She knew that she was violating the law. Her argument is that the law should be adjusted to make reasonable accommodations for her belief. She should win, but it’s not so easy a case that a Court shouldn’t bother hearing it.
States win on 10th Amendment grounds before the Supreme Court. For instance, in the Obamacare decision, they were able to win the right to reject Obamacare’s Medicaid expansion.
I wasn’t meaning the implementation of Obergefell -I must have misunderstood your meaning. I was meaning that the governor ordering the clerks to do anything, having the power to adjust paperwork (or refuse to adjust paperwork) is a peculiarity of Kentucky. In other states it might be a different Constitutional Officer (secretary of state) or it might require the legislature. Even here, there’s an argument that any accommodation needs to be provided by the legislature, which is why the governor is getting some flak for not calling a special session.
sidebar – policy person that I am, I cringe at the locution “implementing Obergefell.” Agencies implement the will of their principals -Executive or Legislature. Whatever they do to comply with judges, it is not implementation. Implementation is done after a policy is chosen. If we are implementing the will of judges, it is because they overstepped their authority and dictated policy.
I realize this is what Kennedy does, it still chafes my chaps.
The implementation of Obergefell required some changes in paperwork in those states that were not already in compliance. It is my understanding that in every state this was accomplished without the involvement of the legislature being required and that in Kentucky it was the implementing directive that Davis is properly seeking judicial review of. Her aim is not to correct the SCOTUS, which ain’t gonna happen through her case, but to correct Beshear’s Unconstitutional form of implementation.
I defend the US Constitution as it exists in the world quite a lot, as well as in theory. Kennedy is one of the few cogs in the machine that really strikes me as defensible only on the (weak) grounds that there’s a lot of good folks out there and it’s uncharitable to focus excessively on the, well, Kennedys. If Trump were somehow running to take the Kennedy seat, I’d be likely to look more charitably on Trump’s arguments.
But its not up to her the law says they are eligible. Are you claiming that local magistrates should be allowed to determine what laws are valid?