Osler's Razor

I believe that Kim Davis is a tragic figure. Her's is at best a local story of a county clerk not carrying out her duties. This happens all the time and is generally taken care of appropriately. Her reason for screwing up on the job has been grabbed by opportunists.

It has become a disturbing story of an individual being used by politicians and the media in a losing homophobic battle in the name of religion, freedom and God.

Kim Davis has a troubled past and now has a troubled future. She will loose her job and will be put on display as a victim. I am not sure that this is what God had in mind for Kim Davis. My heart goes out to this fragile person.
 

I have seen Huckabee and others speak about this, and I could not disagree more. I feel they have been very irresponsible in this regard. She is a public servant. The Supreme Court and a local judge have spoken. She can take issue all she wants (as the minority on the court did). She can quit her job as an act of conscience. She can protest in front of the court. She can engage in other forms of civil disobedience, as Christians have long done. But as a civil servant she cannot pick and choose which laws to follow and not to follow. Period. Furthermore, and as I trust she would be quick to say about me (along with others!) … Christians like her make me cringe and want to disavow any affiliation with the faith, both in her theology and in her actions/praxis.
 

One of the things about this issue is that people are saying that the SCt rule created something new. It did not. The 14th Amendment is approximately 150 years old, and there is a lot of jurisprudence regarding it. The key case relevant for this matter is Loving v. Virginia, in which the SCt said that the equal protection clause means that a state could not deny a white man the right to marry a willing black woman, because it denied him the equal protection of the law. Of course, the ruling had a general effect beyond the specific case. In the recent same-sex marriage cases, the court ruled that the states (and by implication the federal government) cannot deny recognition of a marriage of two individuals of the same gender that meet other standards of general applicability (e.g., age of consent, not married to another), because that would deny them equal protection of the law.

A County Clerk engages in what are administrative tasks, not policy, and has no right to act contrary to the order of a court in her official capacity. It is a violation of her sworn duty, and makes her oath a lie and her continued service a fraud.
 

As I've said in other spaces, It's hilarious to me that conservatives of Cruz and Huckabee's stamp - famously prone to paroxysms of paranoid hysteria at any hint of public officials illegally interfering in the private lives of citizens - are rallying around KD, a public official illegally interfering in the private lives of citizens. The conservative/evangelical movement needs to do some real soul-searching if their argument amounts to "elected officials can only exceed their authority when they happen to be on our team."
 

I think sincere religious conviction has no place in administering the affairs of a state that is separate from church. As far as I know in the United States of America religious persecution is still a criterion for obtaining asylum, accounting for the myriad religion minorities in this country. The Middle East should be a constant reminder to those politicians seeking public service jobs with religion as an important component of their platform, that religious persecution is a form of sincere religious conviction.
 

To me, the most cynical part of the spectacle was Mike Huckabee and Ted Cruz fighting over Kim Davis. ("The martyr is mine, all mine." Didn't clerics used to fight over relics?)

Well, that and the beautiful block put on Ted Cruz by the Huckabee staffer. It was Exhibit A in any examination of what the event was really all about.

You have to wonder how much Jet A was burned getting these two hucksters and their entourages to the courthouse on time.

I personally blame most of these pockets of resistance on the dissenters, especially Scalia and Roberts, in Obergefell. The language in the dissents to the effect that the case had nothing to do with the Constitution practically incited this lawlessness. I'm just glad Judge Bunning studied the majority opinion.

But, I'm afraid, this isn't over, perhaps even in Davis' office.
 

Justice Kennedy's decision, good libertarian and fair minded man that he is, was the right decision. I will leave all of the legalese on the matter to our counselor friends, but it was given our sitz in leben, the right decision for all individuals and the country as a whole. For one thing, how long could we as a nation gone on with some states recognizing same sex marriage and other states not recognizing it? What a mess. Anyway, the county clerk is a governmental official. If you cannot in good conscience perform the duties of your position,then resign. It has been noted elsewhere that Ms. Davis has been married several times, which is after all not in accord with her Apostolic Church (a conservative evangelical Protestant denomination) beliefs. Undoubtedly, she has issued marriage licenses to folks who have been divorced, some of them several times or more, she has issued marriage licenses to people who have committed adultery, and so on. If she desired to be logically and theologically consistent, then she would have remedied this matter by acting in a different way. We are all guilty of hyprocrisy at one time or another, yet it seems to me that her position on the matter of issuing licenses to same sex couples is hypocritical on her part, and yes, Huckabee and Cruz are craven opportunists.
 

I agree that the lady should have put her personal convictions aside, recognized that her task was administrative and did not impose a tax on her conscience, and that she should not have stood in the way of the licensing process.

I agree that Mr. Huckabee and Mr. Cruz were pandering to a certain constituency for political purposes, and believe them to have been out of line.

I don't agree, as some have suggested, that the wrong-headedness and resulting actions of perceived fellow believers should have any effect on one's faith, religious or otherwise. Were every lawyer, judge, doctor, financial advisor, minister, politician, military man, government official, teacher, etc. to lose faith in his/her profession because of the bad thinking and bad actions of colleagues, we should all be in a fix. Hyperbole?

The notion that dissenters in a case presented on constitutional grounds, by questioning those grounds, are somehow at fault and share the blame for wrongful actions of others is...well, absurd. I am sorry if this offends anyone, but even were a causal connection provable, under our scheme it is the duty of the Justices to call cases as they see them, and state their reasons plainly.


 

If we want to focus on the absurd, we ought to start with the puerile remarks of the scofflaw, Antonin Scalia, in his dissent in Obergefell. Roberts was more measured, but just as lawless. I considered the matter before, shortly after Obergefell was decided, and I stand by the remarks.

http://left.mn/2015/06/stamping-out-pockets-of-resistance-2/
 

Very nice. Looks like we are 9-0 thus far. Unanimous. The Supreme Court should be so enlightened on such polarizing topics.

Just to keep the adversarial model alive, I will submit these two NRO dissents for your disposal:

David French: http://www.nationalreview.com/article/423706/kim-davis-marriage-license-christian-rebellion-kentucky?target=author&tid=1048

John Eastman: http://www.nationalreview.com/article/423709/kim-davis-constitutional


 

I seldom comment on Thursday, but the woman belongs in jail. She has no right to deny people equal protection once the Supreme Court has handed down their decision. You can't pick and choose the laws you want to obey or disobey. She has a very warped sense of the Constitution, and the same law that gives her religious freedom is also the same law that says she cannot do what she is doing. I do not see her as a tragic figure, just an ignorant one. Put her back in jail, I say. And put Huckabee (who should know better) and Cruz (who knows nothing) with her.
 

Eastman is right that the Free Exercise Clause and RFRAs are ascendent right now. I knew RFRA was going to be trouble when it was passed federally during the Clinton administration.

Eastman says, well, applicants could do this, or the county executive could do that, or the Kentucky legislature could do something else, so what the fuss? I think, actually, he described the fuss pretty well.

Just about every important civil rights advance you can name has had people arguing religion against it every step of the way. I will quote myself again, which is always pleasant to do:

http://thecuckingstool.blogspot.com/2011/05/all-things-bright-and-beautiful.html (The Latin may be wrong in the header, but never mind.)

It is probably worth remembering that Branch Davisian exists in other places and in other states, too. With the sanction of a Chief Justice in Alabama. It isn't a matter of merely humoring one dictatorial functionary in Kentucky.


 

And here's a development that ought to leave you a little, well, troubled:

http://www.rightwingwatch.org/content/oath-keepers-send-armed-guards-protect-kim-davis-us-marshals
 

Wow! What a great discussion...
 

I find the "liberal" or "left" reaction to this situation troubling in many regards. I also find it very troubling no thoughtful "conservative" or "right" advocate has articulated a cohesive reply.

1) Kim Davis' job description did not include the issuance of same sex marriage licenses when she took the position. The rules and her duties changed. To expect an overnight acceptance of a social change which has taken decades is unreasonable. Acceptance of this new rule will take time. It is poor form to be a sore winner and make everyone conform instantaneously through law suit.

2) The argument that she must accept the law as is seems hypocritical to me. Less than six months ago not a single advocate of same sex marriage would have been deterred by the argument, hey, just accept the law as is. You should not advocate a change or seek an interpretation different from the one today. Law evolves as we have seen. It is only through challenges to the law that its boundaries are defined.

3) Most shocking is the jailing of Ms. Davis and the widespread support for such action. Step back and look at the big picture, a highly-educated federal judge in a government position of authority criminalized and jailed an average person because she refused to do her job based on religious reasons. Fines and civil penalties seem appropriate. We should all fear the fact a court has jailed a non-violent protest of the law.

Further on this point, I would note President Obama openly chose not to enforce DOMA on the grounds he believed it to be incorrectly upheld by the Supreme Court and unconstitutional. While his arguments may have been more academic than hers by a material margin, they are in essence the same. She disagreed with the Supreme Court and refused to perform her executive duties a colorable argument that she is constitutionally correct. The gap in support between the actions of a member of the elite Northeastern class and the actions of an average member of society troubles me as well. We should be careful when we are content for the law to be unevenly applied to those which are of an upper class or those with whom we agree.

4) There should be reasonable accommodation in administering the affairs of the state for the individuals performing those duties. If all state employees had to check their religious conscience at the door, then the government would be composed only of those without a religious conscience. The government should be representative of the people as a whole and all members of society should have a voice. These are the bedrock of democracy. I saw one article (which I have not been able to confirm as of yet) which stated Ms. Davis did not want her name to appear on the marriage licenses. If that is her objection, then it is a simple accommodation to make a change to the certificate. Again, we should be careful excluding an entire class of person from government service based upon their religious convictions not matter how idiotic we believe them to be.
 

Of all the arguments Kim Davis' supporters come up with, the one that appalls me the most is the "the law changed" argument. No one should get past elementary school without understanding that laws are not immutable and that when you take an oath for a term of office to uphold the law it must be with the understanding that some laws will change in that time.
But who could have imagined when Kim Davis first ran for county clerk way back in 2014 that the responsibility for issuing marriage licenses might at some point involve issuing them to same-sex couples?

 

Ryan posted a thoughtful comment – with four subparts! – and I want to respond to each one.

1) Ms. Davis’ job description involved issuing marriage licenses to all persons legally qualified to receive one. Clearly, acceptance is going to take time, but if we’re a nation of laws, allowing a “time of adjustment” for some people is problematic. She was also not engaging just in personal conduct; she prevented anyone else in her office from issuing marriage licenses. And I think calling a gay couple that has wanted to be married for decades a “sore winner” for wanting to have a licensed issued is not accurate and not fair.

2) Ms. Davis did challenge the law in multiple hearings before Judge Bunning and even before the Supreme Court. She lost.

3) Ms. Davis was confined for civil contempt, and as noted earlier, she had multiple opportunities to make her case; in fact, she had a big-shot (East Coast!) conservative public interest law firm to assist her. She could have purged her contempt at any moment by agreeing to perform the ministerial functions she was elected to. Unlike decisions to enforce DOMA or not, Ms. Davis is not a policy maker; she is, let’s be honest, a minor government functionary. The judge even released her without her purging her contempt, because others in her office we willing to do the job. Personally, I think she caught a break, a break that is hardly cause for two presidential candidates to give high fives all around.

4) I don’t think that previous commenters were saying you had to check your religious conscience at the door; clearly people don’t. (If they did, many more lunches would be stolen from the break room fridge.) Personally, I believe you can have a conscience without it being a religious conscience, but I’m not going to have that debate here. And as noted earlier, it wasn’t just matter of the name; she prohibited anyone in the office from issuing a marriage certificate to a gay couple. We don’t vote on our constitutional civil rights. If Loving v. Virginia (still my favorite case name ever), or Obergefell stand for anything, it is that. If we did vote on these rights, schools would be more segregated that they are, Jim Crow would sill rule the land, and in some places, gays would never get married.

 

At this point, I have to say, Kim Davis and her lawyers are really slow learners:

Attorneys for Kim Davis, who objects to gay marriage on religious grounds, argued in their motion to the Sixth Circuit U.S. Court of Appeals that all the same-sex couples who sued Davis for a license received one from her deputies while she was in jail. Therefore, they said, her office should not be required to issue them to any more couples once she returns to work.

http://bigstory.ap.org/article/e4d8a958234b445caeaf72db4f385421/kentucky-clerk-again-asks-delay-gay-marriage-licenses

You have to say, at some point, that enough is enough. Requiring every gay couple who applies for a marriage license to sue is the death of gay marriage by a thousand cuts.
 

Not wishing to be caught in the crossfire between US marshals and the Oath Keepers, Kim Davis and her lawyers have - wisely, in my view - declined the assistance of the Oath Keepers in asserting her "due process" rights. Even Kim & Co. recognize that the Oath Keepers are not constitutional giants.

http://www.rightwingwatch.org/content/kim-davis-declines-oath-keepers-offer-armed-guard

I mean, a passion play is one thing, but genuine martyrdom is another.

The Oath Keepers are the group that rallied around Cliven Bundy and his trespassing cows, and who stood up courageously to the BLM. I suspect they would find the US Marshal Service to be an entirely different kettle of fish.
 

On point 3, I unequivocally agree it is hardly cause for two presidential candidates to give high fives. Please don't lump me in with Ted Cruz! I beg of you!!!