Judging Kim Davis


DavisI’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
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  1. Lucy Pevensie Inactive
    Lucy Pevensie

    Kate Braestrup:

    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.

    I’ve shuffled quite a few steps from where I was as a young adult.  I never think about it much until I recall conversations I had when I was younger: for example, the way I once encouraged a gay male friend to think about adopting a child (I thought and still think he’d have made a great dad). I used to be way more accepting of gay people back before gays decided they wanted to take over the term, “marriage.”

    Even if polls, which may be very unreliable, are true about current opinions on gay marriage, opinions can move in more than one direction.

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