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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
What law, specifically? Surely there was a bill passed? I’m sure it would have been in the papers . . .
There was a Supreme Court opinion that laws which define marriage as between members of the opposite sex are invalid. Kentucky law exclusively defined marriage as between a man and a woman, with no other possible formulation. It was extremely explicit, and intentionally non-severable. This Supreme Court opinion invalidated essentially every law regulating marriage in the State, and sections of the State’s constitution.
The governor has taken it upon himself to write new law by decree, because it would be inconvenient to convene a special assembly of the legislature to deal with a little thing like modification of the constitution and all civil laws regarding marriage.
Why is this massive over-reach of authority by the governor considered law, and a clerk requesting a religious exemption from his decree considered a bridge too far?
The law doesn’t say they are eligible, the governor does. Apparently he believes in the absence of standing law that he has the authority to determine who is eligible to marry.
In any case, Kim Davis is not declaring them ineligible to marry. She is only declaring that she cannot in good conscience certify that they are eligible to marry. She has asked that in such cases references to her certifying this be removed.
This accommodation is entirely possible (and maybe even required) under state law, and it is within the governor’s power to make such accommodation under the Religious Freedom Restoration Act. He has refused. As far as I can tell his reason for refusal is that it would require a special session of the legislature to change the law in order to appoint an officer besides the county clerk to determine the eligibility of couples to marry.
Five hundred years ago, the Catholic church was the only church, and it was known to execute people who disagreed with it—e.g. William Tyndal, who produced a translation of the Bible. (oops).
So while I guess it’s possible that the church will not become sufficiently tolerant as to marry gay people, let’s hope Catholicism’s general trend toward increased tolerance nonetheless continues or at least stabilized, since a reversion to burning people at the stake would be—I assume you agree?—worse even than Catholic lesbian nuptials.
As long as they’re not burnt.
This isn’t Kim Davis’ argument. This is Mike Huckabee’s argument and Ted Cruz’ argument, but Davis is making a narrower case. I imagine this is because she knows that every state in the union has had their executive and/ or judiciary fix the forms. The constitutions and such don’t need to be changed; the parts of them that needed to be struck down by Obergefell were struck down by Obergefell. She’s making a legal argument defending her Constitutional rights. Huckabee and Cruz are making broad arguments about the illegitimacy of the Court.
She does have the right, as an American, to challenge the laws when she believes them to be unconstitutional, but she’s wisely choosing to do so in a way that might result in her winning.
Whether she has made the case or not, it is incumbent on the court to determine that the governor actually has authority to issue such an order, before the question of religious exemption is even considered.
There is effectively no standing law regarding the regulation of marriage in Kentucky after Ogberfell, and the law appointing authority to certify a couple is eligible to marry confers that power to the county clerk, not the governor.
No, her argument is that she cannot in good conscience certify that they are eligible. That is why she has requested an accommodation.
The supreme court. Surely you know how judicial review works.
We may all agree that Obergefell was a terrible decision, but that doesn’t change the fact that the decision changed the law in Kentucky.
Is he acting within his authority though? He has ruled out an accommodation on the grounds that he would have to call a legislative session to make such. If he has the authority to dictate who an officer must certify as eligible for marriage, surely he also has authority to make accommodation for a religious objection. Especially since the state RFRA empowers him to make accommodations for religious objection whenever it can be done without unreasonable burden.
The Supreme Court is not a law.
Kentucky very recently went through considerable effort to regulate marriage in a specific way. The Supreme Court has invalidated the law which regulates marriage in the way that the State chose, leaving the State of Kentucky without valid laws regulating marriage.
I simply do not accept that the Supreme Court has the authority to define how Kentucky must regulate marriage, or even require that it does regulate it. The Court’s authority ends with how a State may not regulate.
Any allowance for the Court to require law and regulation be enacted is entirely in violation of the Constitution and the concept of separation of powers. Creation of law is the domain of the Legislature.
You have a point, I apologize for the snarky attitude.
Kate I just used the church as an example. The point is that the opprobrium that is generally associated with racism today is unlikely to exist in connection to skepticism about homosexuality and same sex marriage. At least, it does not exist now. Such skepticism is “tolerated” the way racism is not. The gay lobby senses this and is frustrated by it. The question is whether they will be successful in eliminating such tolerance.
Well, not really, no. If the authority is stipulated, courts don’t waste the time of everyone involved.
Well, kind of. That power is to certify if they’ve met the conditions laid out in statute as amended by the Court. It is not to decide the criteria, which has been decided by the Kentucky legislature and then amended by the Court. The form of record keeping falls within the gubernatorial purview.
That’s because he’s arguing that he’s not under a duty to do it.
No, but it’s a court and courts in the common law system have it as their purview to say what the law is. Apparently, marriage law in Kentucky includes SSM. Who knew?
I added some key terms.
Well, that’s fine, but you shouldn’t let your outrage at this color your analysis of Davis’ case. Just out of interest, and I don’t believe them to be similar cases, do you believe that the Court acted legitimately in defining how Kentucky regulated inter racial marriage? How about how Kentucky regulated segregation in schooling?
Kate, you’re conflating quite a bit here that is wholly distinct. Yes, the Church got out of the nation-state business (effectively, anyway) and all of the consequent mixing of religious authority with civil authority.
The Church isn’t intolerant of homosexual people; it considers homosexual sex to be a sinful act (along with masturbation, sodomy, adultery, fellatio, cunnilingus). The Church isn’t intolerant of any person who engages in any sin whether the sinner happens to identifi as straight, gay, or bi. Reconciliation and redemption are open to all.
Kate B, thanks as always for setting an example of grace under fire. Ed G, thanks for a thoughtful and reasoned response. Joseph E, I’ve been known to snark myself and we’ve all been driven by internet debate to the border of anger. Nice gracious comment of yours.
EDIT: Of course, James of England once again proves why some lawyers, at least, are well worth the money. He also proves that at least some young people still read books, but that’s another matter.
Bob W, glad to hear the acknowledgment of two important points:
1. in five hundred years, there’ll still be SSM;
2. and nobody will force the Catholic Church to perform them.
I say that around these threads all the time. Good to get some backup! ;-)
James, I liked the argument better when we just stipulated the Governor could adjust paperwork. Could we drop and forget all references that he actually needs the legislature to do it.
“All 50 states are flagrantly breaking the law in response to the lawlessness of the Supreme Court” is not moving me in the correct direction regarding the “Storming the Bastille” question.
The governor doesn’t have discretion over who can marry in Kentucky (I believe; I’m not familiar enough with the Kentucky constitution to disagree if Sabr tells me that the consanguinity, age, or somesuch laws delegate authority to Beshear). He does have the ability to fix the paperwork, which he did, badly.
I gather he has partially fixed the situation (apparently the office is currently able to issue licences without her?) He’s not permanently fixing the situation because he is benefiting from it. Kim Davis is almost a caricature of what liberals like to think of homophobes. Before she found God she wasn’t religious, which makes her a hypocrite in their eyes (it’s hard to overstate how much they yearn for hypocrisy in hate figures). She’s ugly, dresses cheaply, talks about God a lot, and has an accent, which likewise makes her stupid and contemptible. Although her legal arguments are narrower, and sounder, than those put forward by Chris, when she confronts couples she says that she’s following God’s law, which is broader and way less defensible (the RFRA says that she can have reasonable accommodations, but she really can’t decide to follow an alternative legal system in whole cloth), and says that she’d issue licences to an interracial couple if they were heterosexual during a period when she’s not issuing marriage licenses to anyone. She’s a decent martyr for us, but a very near perfect pinata for them.
There is essentially nothing that liberal activists and donors like more than a strong sense of superiority, and Davis offers them all the bigotry they can eat. Spend some time in liberal environments in this and you’ll find them joyously wallowing in misogyny, snobbery, and other delights. This is a chance for Beshear to be remembered as a hero who fought a troll, and the impression will get stronger every day that this is a story.
More importantly than that, this is the best LGBT fundraising event of the year. People were more excited about Obergefell, but donations come when people feel insulted and when they feel hateful, not joyous. Davis is almost perfectly designed to get wallets opened and time committed to support the Clinton campaign, DNC, and LGBT activist groups.
Did you see the Don Lemon/ Matt Bevin interview? They pulled out the West Wing clip (almost a minute of it), where a conservative radio show host refers to the Leviticus as a basis for condemning homosexuality, so Bartlett puts her down by pointing out that Judaism is an evil and contemptible faith, and that no Christian could reasonably respect the Old Testament. Just watch the joy on Lemon’s face as he pronounces the undeniable truth that Kim Davis is putting value in some old books, which were not written in modern times. The whole carnival is one that puts a spring in their step, and dollars in their pocket. Goldsteins like Davis don’t come up often, and the giddy excitement of it makes him openly anti-Christian (and even more explicitly anti-Jewish) to a degree that he would not normally be.
On our side, it empowers Huckabee, and specifically raises the profile of his views on SSM, which also helps them; it makes it harder for conservative campaigns to get traction in the primaries (if Huckabee wins the primary, this will have been an own goal, but I think they’re happy to accept that risk). Everything about this works out fantastically for Beshear and his party. Why on earth would he want to fix a problem that gives him so much joy? It’s not even like he’s up for election, so there’s no political risk to him.
Uh, I’m not sure my follow up was helpful in that, either. The Democratic use of Davis is the sort of thing that even many of the activists recognize as having ethical issues, but keep doing nonetheless because, like a cocaine fueled party in an underage brothel, if your ethical sense and tastes let you get started, your hormones aren’t going to let you slow down.
I’m not even going to note that things would be different were it not for a regrettable primary allowing the party to focus on its national aims rather than being defensively concerned about November.
On the plus side, none of our candidates has said anything dumb, which has to have been the chief thing that they were hoping for; even Bevin was pretty disciplined.
Trump made a relatively measured moderate statement (he thinks she should get another job). I should clarify that by that I mean he took the position of social liberals/ moderates in the party, and he didn’t dial it up to 11. It’s obnoxious, but he didn’t call her ugly or taunt her. I continue to hope that the drip drip drip of hostility to their beliefs will eventually drive the SoCons who provide much of his activist base, albeit not his voter base, to support conservative candidates instead, and that his rate of awful statements will slow with time, which it appears to be doing.
It’s an awful situation, but it looks like the stuff that can break our way is breaking our way.
I feel better just reading that.
In answer to your follow-up. The Kentucky Constitution just creates the governor, stipulates the qualifications for office, and leaves the rest to the Legislature.
The legislature has written that everyone who marries has to have a marriage license, form to be provided by the Department of Libraries and Archives, which commissioner is appointed by the Governor. The complication may be found in 402.100(1)(a), which stipulates that the form include the authorization statement of the clerk issuing the form. Notably, the authorization has to be given to the person performing the marriage, not the people getting married. And then only a signature indicating the license was recorded by the clerk. So it looks to me like the governor could totally fix this (or his appointed Commonwealth Librarian).
And yeah, Steve Beshear is a closet liberal, and it ain’t that deep a closet.
Oh, we’re hosting a gubernatorial debate in October, and the CRs are going whip up student support across the state. We’ll get the votes.
In 2 weeks we’re hosting a platform debate with the Dems. We’re cribbing your arguments here to defuse the inevitable Kim Davis question.
We will then be hitting them with funding Planned Parenthood. One of our members may or may not be wearing a mobile television screen if we feel the need for a visual aid.
(I kid, I kid…)
James Of England
The October 17 debate?
I don’t think you want to defuse it. Bevin put forward something like the solution that is now being implemented in July. Beshears was aware of it, and chose instead to adopt a solution that turned out to be terrible. As a result, gays have felt persecuted and disrespected, Kentucky has been held up as a mockery to the left for its backwoods bigotry and to the right for its authoritarian abuse of Christians, and the lives of some Kentuckians have been forever marked. Even as the crisis unfolded and Beshears could, at any time, have resolved things, as demonstrated by his actually mostly resolving things before the legislature returned and his awareness, from the beginning, of what the ultimate solution would be, and he chose not to.
This was a massive fundraising success for the Democratic party, but wrecking Kentucky’s brand and the lives of her citizens should not be the way that decent politicians act in order to fundraise.
October 25.
And who ever said Democratic politicians were decent? Decency is a rare enough trait in politicians whose party doesn’t mock decent people. Decent Democrats? Fuggedaboudit.
I think it is politically helpful to be able to persuade voters of that.
With respect, James, anyone who requires much in the way of persuasion that Democrats are contemptuous of everything good and decent in society is arguably too stupid to persuade that water is wet. Even if you tossed them into a swimming pool.
I’m just not sure history provides us with much of a clue as to what is likely to change and how. Racism was once a respectable attitude and is no longer. Attitudes regarding homosexuality change with astonishing and accelerating speed, especially when compared with the downright glacial pace of the historical progress towards, say, female enfranchisement or the freeing of the slaves.
The fact of change—if not the degree of it—has been well-nigh universal. Everyone from Hillary to Sarah Palin to Jim Dobson has “evolved” on this issue. My guess is that you have, too. I know I have.
Doesn’t mean we have all arrived at the same place, but it is pretty hard to find a middle-aged American who hasn’t shuffled at least a few baby steps from the position he or she held as a young adult. Those who are young today are, of course, generally far more accepting of gays and gay marriage, enough so that many believe that the resistance to full equality for gays and lesbians will be resolved as a matter of sheer demographics.
The Catholic Church may or may not prove immune to such shifts in demography.
So many possibilities! So much time…
ADDED: And Bob, with all due respect, I think it’s the anti-gay lobby that is frustrated. The gay activists are downright gleeful.
Well, perhaps, but the votes of the stupid matter. While we win most elections, we lose some and this is often due to their getting more votes than we do.
New campaign motto: Stupid votes matter.
That will go over well. Never try to teach a pig to sing. It wastes your time and it annoys the pig.