Kim Davis Aftermath

From an AP story:

“There are no winners. Everybody’s been hurt,” said Lois Hawkins, a Morehead native who works as the executive secretary to the county’s top elected official. “It’s going to be different. It can’t go back the way it was.” …

Protesters and supporters alike have come to Rowan County as well, adding to the stress for locals who want to get back to normal. Ante Pavkovic, a pastor from North Carolina, stood in the lobby of the county clerk’s office Wednesday with a sign demanding that Davis’ employees be fired for disobeying their boss by licensing same-sex marriages, even though they too face the threat of jail or fines if they defy the judge.

If Davis moves to fire her deputy clerks who issue marriage licenses to same-sex couples, this could all blow up again. But for now, the dust is settling. The social conservatives have gotten a heroine who will fill their fundraising coffers.

But they’ve also lost an important advantage: Making the case for the freedom not to be compelled to act against religious beliefs, when defending self-employed services providers such as bakers, photographers and wedding planners who wish not to lend their efforts to same-sex marriages, had the support of a majority of Americans, including many who support same-sex marriage. But the social conservatives have now conflated that with Kim Davis and a handful of others who don’t want to recognize same-sex marriage as government officials.

That stance makes the religious right swoon, but it’s not a winning position with most Americans. Yet it’s now the battle they’ve chosen to engage.

More. David Boaz writes that while religious right activists aren’t giving up, they have failed to provoke the backlash they sought—with Kim Davis being that rare exception that proves the rule:

Unlike the continuing divide over abortion, public opinion has been moving rapidly toward support of same-sex marriage. … The obvious difference is that abortion involves the termination of a life. Many Americans regard that as murder, while others think it is at best morally troubling. Gay marriage, on the other hand, means people promising to love and support another person. It’s a lot harder to organize a campaign against that, or even to sustain people’s original opposition once they learn that some of their friends and family are gay and want to get married.

Furthermore. Via Slate, New Poll: Kim Davis May Have Seriously Damaged the Cause of Anti-Gay “Religious Liberty”. A similar point to mine above, although Mark Joseph Stern I assume thinks this is entirely a good thing, and I don’t.

And separately, David Blakenhorn draws an important distinction between “principled civil disobedience” and “principled lawlessness.”

39 Comments for “Kim Davis Aftermath”

  1. posted by Tom Scharbach on

    I agree that the lines have shifted in the so-called religious freedom discussion from state-sanctioned special discrimination exemptions from public accommodation laws for non-government businesses to state-sanctioned special discrimination exemptions for public officials — as some would put it, from “bakers, florists and photographers” to “elected officials and government employees”. I don’t think that we will be going back any time soon.

    I agree, as well, that the effects of the shift are negative:

    (1) The possibility of a genuine, reasonable, adult discussion of the role of religious/conscience objections to laws has been effectively destroyed. It was bad enough when “religious freedom” was conflated/equated with anti-gay discrimination in the private sector, but it has become worse now that “religious freedom” is being conflated/equated with anti-gay discrimination by government officials. So long as the “religious freedom” discussion was focused on businesses in the private sector, there was a chance, however slim, that the discussion might be expanded in the direction of a broader sense of “religious freedom”, a discussion that was religion-neutral, issue-neutral and class-neutral. It may have been a snowball’s chance in hell, but it was at least a chance. No longer. “Religious freedom” has been reduced to a discussion of protection for “anti-gay”, or, at best, “anti-equality”, Christians.

    (2) Christianity, already tarred as “anti-gay” by thirty-plus years of conservative Christian rhetoric and action (think foward from Anita Bryant’s “Save the Children” campaign to the anti-marriage amendments, and beyond), are now being dragged down even further into the anti-gay murk in the minds of non-Christian Americans by this latest sidehow. Rational Christians are going to pay the price for this madness, and that is a shame, in my opinion, because Christianity, for all the many dark stains of its history, has something positive to offer.

    (3) The Republican Party, already tarred as “anti-gay” by fifteen years of anti-equality legislation and action, is also likely to be dragged down further in the popular imagination. That is going to hurt the party, and could hurt the party bad. A number of the “base” candidates — Ted Cruz, Mike Huckabee, Bobby Jindal, Rick Santorum — are falling all over themselves trying to outflank each other, and it is quite likely that their efforts will drag others to the right, just as Donald Trump’s nativism has done on the immigration issue. The Republican Party needs to move in the direction of equality, not anti-equality, if it is to avoid firmly cementing its existing anti-gay image.

    (4) The sideshow is almost certain to breed disrespect for the Supreme Court. At least four of the Republican candidates for President are in flown-blown fantasy flight, claiming that the Supreme Court does not have the constitutional authority to invalidate unconstitutional laws (a constitutional principle not in question since Marbury, decided in 1804). The new rhetoric marks a new position for the right — previously, anti-Court diatribes focused on appointing “constitutional conservatives” like Justices Alito and Scalia to the Court, or limiting the Court’s jurisdiction over “culture wars” issues, or amending the constitution to eradicate decisions like Roe v. Wade or Obergefell — and a dangerous shift in both rhetoric and political philosophy.

    I hope that this sideshow will run its course in a relatively short time, but I am not hopeful. The anti-gay base of the Republican Party is too entrenched, and too powerful within the party, to be swept aside, and, as Stephen correctly notes, the escalation from private businesses to government officials “makes the religious right swoon“.

  2. posted by Lori Heine on

    The whole mess has given me such a headache that I almost don’t even want to deal with it anymore. I agree with Tom S. that the trend is not good.

    And as a libertarian, I will note that on my planet 🙂 things are quite messy as well. The faction that wants to court conservative converts has been Charlie Brown again. Lucy has pulled away the football for at least the hundredth time. Conservatives have NO intention of supporting real liberty, and are misusing the term.

    I can’t blame commenters here for being confused. Lucy is running around with that football under her arm, loudly proclaiming that she is a libertarian. And Lucy is so loud, and so insistent, that it’s hard to get a word in edgewise.

    Of course Jorge will weigh in with more Catholic theology. I’ve given up on Catholic theology. I’m an Episcopalian. There’s no point in arguing theology of any sort in connection with Kim Davis, anyway, because as several people here have pointed out on other threads, her theology is incoherent.

    What fun it all is. Not.

  3. posted by tom jefferson 3rd on

    Davis cred as a defender of religious liberty went down the WC when she insisted that she was the only county employee entitled to religious freedom.

  4. posted by tom jefferson 3rd on

    The anti-religious freedom crowd will hold up Davis as a hero. She is hoping for a book deal, lecture circuit, action figure and even a TV movie of the week.

    Just how sucessful will Davis be….?

    • posted by Lori Heine on

      But the action figure part I can kind of understand. That would be neat. My favorite one was Super Librarian Lady: Nancy Pearl, America’s Librarian. She had a blue suit, and a button behind her left shoulder you could push to make her go, “Shhhh!”

  5. posted by Jorge on

    Rational Christians are going to pay the price for this madness, and that is a shame, in my opinion, because Christianity, for all the many dark stains of its history, has something positive to offer.

    I think a dark history makes religion more humble, and thus more focused. I do not wish to make light of such history.

    Anyway, I’m not too sure things will end up as you and Mr. Miller say they will play out. A shift in where things stand can be corrected, can be a correction. Your pessimism reminds me of all the negative punditry against NYC mayor de Blasio from elites among African Americans and also from his right. The truth is, the mayor has long been hovering near the shifting sweetspot between the city’s desires for leftist ideology and pragmatic governance. The wingnuts and the impatient on all sides think the sky is falling, while the moderates are often roused to action, but the people who are watching are satisfied with the new balance.

    It is much the same here. If the gay tyranny movement is destined to become the face of the gay rights movement (something I’ve been pessimistic about lately), then it is better for this country that the forces of conscientious objection go out with a bang than a whimper, so that the timing of their defeat will preserve both their self-respect as well as the reputation of the gay rights movement. Peace is a little more important than justice; you get the best of both worlds if you kill the just.

    Also I don’t see any polling on this. Obviously almost a plurality of the Republican field feels emboldened enough by their internal polling to say Ms. Davis didn’t do the right thing, so I know where this is headed, but that’s still a blurry picture to me.

    Of course Jorge will weigh in with more Catholic theology.

    “In this area, everyone can exercise the right to conscientious objection.”

    You called it.

    • posted by Kosh III on

      ” gay tyranny movement” What the frak is that? Is it tyranny to demand equal right under the constitution?

      • posted by Houndentenor on

        A far right talking point along with gaystapo and other memes from the far right. It no doubt comes from whatever rightwing nutjob websites Jorge reads when he’s not here.

  6. posted by Tom Scharbach on

    Tom: Rational Christians are going to pay the price for this madness, and that is a shame, in my opinion, because Christianity, for all the many dark stains of its history, has something positive to offer.

    Jorge: I think a dark history makes religion more humble, and thus more focused. I do not wish to make light of such history.

    I’m glad that you do not wish to make light of the dark side of Chrsitian history. As ugly as it is, good can and does come of it.

    As you point out, a dark history can make religion more humble.

    The long, bloody history of Christian anti-Judaism, beginning as early as the time in which the Gospel according to John was written, and continuing through violent suppression of Christians who kept the Law in the 1st through 4th centuries, and continuing further through the dark history of pogroms, ghettos and expulsions, culminating in the cultural madness and inhumanity of the Shoah, led to a reassessment of the relative role of Judaism and Christianity in Vatican Council II and during, in particular, the Papacy of John Paul II. At present, for a while at least, the Catholic Church is mindful that Judaism is the rootstock, and Christianity the graft, as it is written. Without the Shoah and the dark history that led to it, I suspect that Christian amnesia about its roots would have continued for a long time to come.

    And, in addition to bringing a religion to reassessment and humility, a dark history can lead to objective, religiously-neutral, good, as well.

    It is, after all, the dark side of Christian history — the long, bitter, history of repression by Christians against Christians — that led to the “freedom of religion” and “establishment” clauses of the First Amendment. The founders, many of them Christian and most of the others Deists, looked at that long history of Christian against Christian repression in both Europe and in the Colonies, reflected on it and wrote about it, and in brining the First Amendment, with its difficult balance between “freedom of religion” and a ban on “establishment”, elected to do what they could to ensure that history would not repeat itself in the new nation.

    Many modern Christians, far from the memory of the Christian against Christian repression of which the First Amendment was born, forget.

    The idea that the United States is a social experiment in which church and state are separated, in which there is no religious test, in which public officials act neutrally in accordance with the law, rather than in accordance with their religion, and so on, is less universally accepted at this time than it was even 50 or 100 years ago.

    Lindsay Graham is a throwback to an earlier time when public officials were expected to serve the public, fairly and equally, or resign: “As a public official, comply with the law or resign. The rule of law is the rule of law. We are a rule of law nation. And I appreciate her conviction, and I support traditional marriage, but she’s accepted a job where she has to apply the law to everyone and that’s her choice.

    Few others come close. The idea that government officials should be allowed to operate extra-legally, picking and choosing which duties to perform and which not to perform, in accordance with their religious lights, has taken root in the Republican Party, if the utterances of its Presidential candidates in recent weeks is to be taken seriously.

    The conservative Christian candidates (Cruz, Huckabee, Jindal, Santorum, et al) are vying to see who can get into the spotlight with Clerk Davis, each taking extreme views that directly challenge that First Amendment balance between “freedom to worship” and “establishment”. Most of the others are taking incomprehensible “waffle” positions, bloviating about requiring public officials to perform their public duties but “respecting the religious freedom” of those who will not.

    Fifty years ago, when separation of church and state were still the cultural expectation, Clerk Davis would have been told, flatly and bluntly, “Do your job or resign and let someone else do the job.” Now, men and women who purport to be serious about taking the oath to “preserve, protect, and defend the Constitution of the United States” argue whether or not permitting an otherwise obscure County Clerk to shut down the marriage licensing operations of an entire county, refusing to issue licenses herself or permit anyone else in her office to do so (notwithstanding state law that authorizes them to so do), forcing anyone who wants to obtain a marriage license to go to another county to do so, is a “reasonable” accommodation of “religious freedom”.

    It is time, as Mike in Houston pointed out in an earlier thread, to remember that “the First Amendment has two sections — freedom of religion and the establishment clause. As with the “scholars” from the Liberty Counsel, the want to use the first as a cudgel, but remain silent on the second, Davis used her governmental authority to force (establish) her religious dogma on everyone else that sought county services.

    I want to take a moment to quote a conservative who understood, in my opinion, the dangerous ground into which are now being led. In September 1981, Barry Goldwater had this to say:

    “I’ve spent quite a number of years carrying the flag of the ‘Old Conservatism.’ And I can say with conviction that the religious issues of these groups have little or nothing to do with conservative or liberal politics. The uncompromising position of these groups is a divisive element that could tear apart the very spirit of our representative system, if they gain sufficient strength. … Being a conservative in America traditionally has meant that one holds a deep, abiding respect for the Constitution. We conservatives believe sincerely in the integrity of the Constitution. We treasure the freedoms that document protects. By maintaining the separation of church and state, the United States has avoided the intolerance which has so divided the rest of the world with religious wars. Can any of us refute the wisdom of Madison and the other framers? Can anyone look at the carnage in Iran, the bloodshed in Northern Ireland, or the bombs bursting in Lebanon and yet question the dangers of injecting religious issues into the affairs of state? … The religious factions will go on imposing their will on others unless the decent people connected to them recognize that religion has no place in public policy. They must learn to make their views known without trying to make their views the only alternatives. We have succeeded for 205 years in keeping the affairs of state separate from the uncompromising idealism of religious groups and we mustn’t stop now. To retreat from that separation would violate the principles of conservatism and the values upon which the framers built this democratic republic.”

    I don’t know, but I’ll be that Barry Goldwater, not to mention Thomas Jefferson and James Madison (the authors of the Bill of Rights), would stand firmly with the “gay tyranny movement” on this issue.

  7. posted by Kosh III on

    It could get ugly

    Anyone else think it’s odd that “oath keepers” are supporting someone who broke a solemn oath?

  8. posted by Houndentenor on

    So much for Stephen’s idea (laughable even back then) that once SCOTUS ruled the right would drop the gay marriage issue. This is going to drag out for years, especially now that Davis has become a cause celebre among the religious right. There will be a few more to join her. Not a lot. (Most of us will go to great lengths to avoid jail time, especially those of us who watch Orange is the New Black!)

    As for Christians overall being hurt by this, yes, they will and it’s their own fault. Where are they speaking out? Oh right, most denominations have muddled positions on gay rights that take 30 minutes to explain after which you have no idea what they just said or meant. They are all over the map in an attempt to unite far left and far right factions inside their own church. Instead they are silent and let the Evangelicals do all the talking. And then they complain to their nonreligious and gay friends that “we’re not all like that! How dare you think we’re all like that!” Note: No one thinks that. We’re just frustrated by your denomination’s silence on important matters.

  9. posted by Tom Scharbach on

    Houndentenor: So much for Stephen’s idea (laughable even back then) that once SCOTUS ruled the right would drop the gay marriage issue. This is going to drag out for years, especially now that Davis has become a cause celebre among the religious right.

    I think that anyone with a rudimentary understanding of American history knew that there would be strong resistance, particularly in the South, somewhat akin to the “massive resistance” efforts that followed Brown v. Board. I didn’t expect, though, that national-level Republicans like Cruz, Huckabee, Jindal and Santorum would be preaching open resistance to federal court orders. I didn’t think that it would get to that point.

    The conservative Christian base of the Republican Party has escalated the issue, now taking the position that (a) the Supreme Court decision in Obergefell is illegitimate and unconstitutional, and (b) government officials can deny basis government services (e.g. issuance of marriage licenses) if the services conflict with their religious beliefs, and to force other governmental officials who work for them to toe the line. Both are significant escalations of the positions that were taken just a few months ago.

    In my view, this is the last circus act of a fatally flawed movement — the self-inflicted reductio ad absurdum that exposes the conservative Christian anti-gay movement for what it is, notwithstanding all the sweet talk about “bakers, florists and photographers” — but I agree that this is going to drag out for years. The American people won’t stand for open defiance of the law and the constitution, but it will take a while for that to become clear.

    Kosh III: It could get ugly.

    It could. I doubt that Oath Keepers will engage in armed conflict with US Marshals, but the group has a history of armed resistance and might try to force a standoff. If it does, I have no doubt who will prevail.

    The one bet we can safely make is that none of the loudmouths — Cruz, Huckabee, Jindal, Santorum — claiming to “stand with Kim” will be anywhere near the federal courthouse when push comes to shove. Fan the flames as they will, not a one of them is going to take the heat. Talk the talk is what they do.

  10. posted by Lori Heine on

    I took the position, originally, that private businesses like bakers, florists and photographers had the right to refuse service. At the time, my primary purpose was to be fair. I suppose I still had some of the unicorn glitter in my eyes. Since Obama has been in office, libertarians have been playing up hopes that conservatives would become more libertarian.

    Now the unicorn glitter is gone. The Kim Davis case–and the copycat cases that will inevitably come up–demonstrate that conservatives haven’t a genuinely libertarian bone in their bodies. They are frauds, and they are motivated by nothing nobler than animosity toward LGBT people. Period.

    IGF will probably flail on for some time flogging that dead horse. Most libertarian media (including right-wing-leaning sites like Reason magazine) are waking up with a terrible hangover. But IGF promotes Republicans, so on it will go. It would be nice if it dropped the pretense that it is in any sense independent, or that it wishes to forge a gay mainstream.

    • posted by MAJ on

      Welcome to reality, Lori. Kinda sucks, doesn’t it.

      • posted by Lori Heine on

        It hasn’t turned me back into a progressive, but it has shown me how pathetic Obama Era homocons have become.

        • posted by MAJ on

          It isn’t just the Obama era homocons, Lori. The homocons have always been pathetic.

    • posted by Houndentenor on

      Exactly. To argue that a business owner has the right to refuse service is one thing. To argue that a civil servant gets to bring their own personal prejudices into the office is quite another. I think Davis’ problem is that she’s refusing to issue any marriage certificates and because everyone knows what a hassle these offices are anyway, the thought of going all the way down to the county courthouse, standing in line and then being told they had to drive to the next county over on a weekday (because they are taking time off work to do this in the first place and many of us do not get paid for the time we are not working), the public is sympathetic to the public not the civil servants and elected officials. You’d think conservatives with all their government-bashing rhetoric would have seen that coming but that just shows how divorced from rational thinking people like Huckabee and Cruz and Staver are.

      • posted by Lori Heine on

        I don’t think they believe in anything. And unless Kim Davis is a total idiot, she doesn’t, either.

      • posted by Dale of the Desert on

        Houndtenor: “just shows how divorced from rational thinking people like Huckabee and Cruz and Staver are.”

        These people are dominionists, and increasingly open about it. That is, they believe (their particular brand of) Christianity should be established as the basis for a constitutional theocracy or even theonomy. And they furthermore are presuppositionists, who believe that humans are incapable of any valid reason, ethics, or morality that is not directly based in, derived from, or in concert with the Bible.

        Therefore they won’t even consider rational arguments against the unfettered exercise of their religious beliefs. Rationality is not a favorable word to them. They deny the Enlightenment.

        In such a situation, a germane issue might become the conflict which arises when their exercise of religious beliefs interferes with my exercise of my religious beliefs, both of which claim biblical justification. How does it not violate the Establishment Clause if and when their exercise of their religion restricts or prevents my exercise of my religion? Either free exercise must accommodate conflicting belief systems, or vice versa.

        • posted by Lori Heine on

          If these people ever got ahold of any real power, they’d be as dangerous as ISIS. The difference isn’t that THEY are better than ISIS, but that (most of the) American people are not willing to repudiate the Enlightenment.

          We see glimpses of that every now and then, as the mask slips. We see it big-time in the Kim Davis mess.

          • posted by Mike in Houston on

            Oh, but the “umbrage” at being compared to Sharia!

            I only wish that the media would stop calling these people “Christian” but refer to them correctly as “Dominionists” — I know that’s a pipe dream in today’s news cycle (SQUIRREL!), but it would be nice for Stephen to start making that distinction in his continual regurgitation of “religious liberty” talking points from Liberty Counsel, Alliance Defending Freedom, NOM and FRC.

  11. posted by Mike in Houston on

    Well that didn’t take long for the next shot…

    Davis’ lawyers filed a petition Friday with the 6th U.S. Circuit Court of Appeals asking the court to halt an order by a district judge requiring that marriage licenses be issued to all couples seeking them.

  12. posted by Tom Scharbach on

    Clerk Davis announced a few minutes ago that she would not authorize marriage licenses for same-sex couples but would not get in the way of her deputies doing so in her place. If she had made that decision when Judge Bunning offered to purge the contempt if she permitted deputy clerks to issue licenses, she would have saved us all a lot of time and trouble, and spared the taxpayers the expense of housing and feeding her while she prayed in jail. As she said the her statement this morning: “I am no hero.” She got that right.

  13. posted by Jorge on

    Lindsay Graham is a throwback to an earlier time when public officials were expected to serve the public, fairly and equally, or resign:

    What? Someone besides me mentioned Lindsey Graham? I blew all my money on that dark horse. Otherwise very well said, Tom.

    There are things Graham is not saying (at least in your quote) that need to be acknowledged. It seems to me that the very existence of the rule of law is what makes civil disobedience so powerful. It makes a sacrifice and a defeat affordable while at the same time making one very difficult to silence entirely. It’s at the cost of defeat being near certain. Incredible decisions can be made in this way. Senator Graham is a former military lawyer so he is going to stand up for the judge over the contempt of court jailing. That has to be done. To challenge that order directly is very reckless and very dangerous. Only the orders preceding the jailing can be challenged.

    And as I may have said before, the information via this “Gay News” site suggests to me that Ms. Davis should lose on a technicality.

    It is also true that Senator Graham is within the top two Republican candidates who have spoken most clearly about the need for the President of the United States to serve the needs of his non-supporters (which is what I vote on), so that’s another reason he has to say that. He wants to stop Iran. He doesn’t want gay Democrats getting in his way. Have I said this before? This isn’t just cynicism–he really wants the Republicans to win the presidency.

    • posted by Jorge on

      Oh, I can’t resist.

      That “earlier time” wasn’t *that* long ago, Tom. People are making comparisons to MLK for a reason.

      • posted by Doug on

        Yes, people are making the comparison to MLK for a reason: They are STUPID and really don’t know what they are talking about.

    • posted by Lori Heine on

      It is NOT “civil disobedience” when an agent of the government, whose salary is paid by the taxpayers, abuses the power of her office.

      That is not what Martin Luther King, Jr. did. It is not what Rosa Parks did. It was not what Gandhi did, and it certainly wasn’t what Christ did.

      Methinks you spend too much time watching Fox and reading right-wing propaganda.

    • posted by Tom Scharbach on

      That “earlier time” wasn’t *that* long ago, Tom. People are making comparisons to MLK for a reason.

      I can see why you couldn’t resist, given the off paths which your mind takes, but the comparison is apples to oranges, chalk to cheese.

  14. posted by Jorge on

    Hey! Hey!

    Look at this. Victory for religious freedom is sweet.

    “Attorneys representing the couples who sued clerk Kim Davis over her refusal to issue marriage licenses are concerned that the altered forms Davis’ deputies issued could be invalid.

    Davis, on her first day back at work after a five-day stint in jail, announced Monday that she would not block her deputies from issuing licenses. But she insisted they be edited to exclude her name and her title.

    The forms, a template issued by the state, now read, “pursuant to federal court order” in the spaces meant to list Davis’ position.”

    That ***** followed my advice!

    • posted by Tom Scharbach on

      A quiet factual note: Clerk Davis altered the forms issued/mandated by the state to remove her name and title from the form, substituting unauthorized wording (“pursuant to federal court order”). She did so without legal authority, and the validity of the forms is in question. Although Kentucky Governor Steve Beshear said that the licenses issued “are going to be recognized as valid in the Commonwealth” (relying on “good faith” equity considerations on the part of the recipients), the validity of the licenses is in question and may result in further litigation.

      A solution this is not; yet another unilateral attempt to change the law to suit her refusal to do her job is what it is.

      • posted by Mike in Houston on

        A suit has already been filed by the ACLU to put things to right…

      • posted by Tom Scharbach on

        The ACLU and Lambda Legal do the heavy lifting when it comes to pro-equality representation and litigation. Lambda has a relatively narrow, LGBT-centric focus, while the ACLU has a much broader focus. I support both as much as I can.

      • posted by Jorge on

        That may well be, Tom.

        But if Volokh’s article is right that Kentucky explicitly grants religious accommodations to elected public officials, and the state refuses to grant her her requested accommodation, then the existing regulations are still illegal and the state cannot enforce them. The state cannot force her out of her job by ignoring or denying her rights.

        Frankly, to paraphrase Lincoln, I think it’s in poor form to say, as Kim Davis’s team tried to say once the licenses started being given out, that all laws save one must be ignored. Once the judge required marriage licenses to be given out in Ms. Davis’s absence, this was the inevitable conclusion.

      • posted by Tom Scharbach on

        But if Volokh’s article is right that Kentucky explicitly grants religious accommodations to elected public officials, and the state refuses to grant her her requested accommodation, then the existing regulations are still illegal and the state cannot enforce them. The state cannot force her out of her job by ignoring or denying her rights.

        Whatever the state of Kentucky can or cannot do with respect to requiring government officials to comply with the laws of the state of Kentucky under Kentucky’s RFRA, Clerk Davis has an obligation to comply with Obergefell and the lawful orders of the District Court of Eastern Kentucky with respect to Obergefell. That is what is at issue.

  15. posted by Jorge on

    “Principled lawlessness is when public officials refuse to execute a law, on the grounds that the law is not really a law. The concept is that, when public officials believe that a law is unconstitutional, those public officials may lawfully ignore or reject it. This idea makes me tremble for my country.”


    I understand the right roasts Obama a lot on this issue, but as a public employee myself I must disagree. I swore an oath to uphold the Constitution on behalf of those I provide a public service to. I bound myself to that oath willingly, and I take that quite seriously. I am responsible for living up to the terms of that oath. But it was not my idea.

    Of course, Kim Davis’s situation is mostly about herself. But even there I take my own Constitutional rights seriously as well. I hold the people above me in my workplace to the same demanding standard I apply for myself. If that is a form of “defiance, aimed at rupture”, then I frankly have no problem standing for the position that an abuse of power by the state directed at my and other public servants cannot be tolerated. I am not the author of either the Constitution or any subservient law that requires any agency to uphold it. But I’m no dummy, and whether or not I permit another party to take advantage of me, those I am bound to protect, and others in my class, is my decision alone.

    “Many of her supporters — including some legal scholars, think tank analysts, and political leaders — further suggest that Davis acted lawfully in refusing to issue the licenses, since the Supreme Court decision legalizing gay marriage is unconstitutional.”

    Ehhh, that’s a silly position. The only way a Supreme Court decision can be unconstitutional is in a political sense–the Supreme Court can do that principled lawlessness in a way that almost carries finality. Anyway, most public servants aren’t allowed to do politics while on duty, so whether or not the Court decision is unconstitutional is irrelevant.

    What is not constitutional, where Kim Davis has an absolute right to redress, is the denial of a religious accommodation and the penalization of her solely on the grounds that her religion is disfavored by the government.

    But as I said, it’s for that reason that I support Kim Davis autonomously editing the template form. The least amount of harm should be done.

  16. posted by Tom Scharbach on

    And separately, David Blakenhorn draws an important distinction between “principled civil disobedience” and “principled lawlessness.”

    The level of lawlessness — principled or not — exhibited by Clerk Davis is evidenced by the representations made in a status hearing before Judge Bunning on Friday. As the New York Times and numerous other outlets are reporting, upon return to her office under orders not to interfere with the deputy clerks who were issuing licenses pursuant to the order of the court:

    (1) Clerk Davis confiscated all marriage licenses forms in the office at that time and substituted a new form that:
    (a) removed all references to Rowan County from the form;
    (b) removed all references to the office County Clerk from the form;
    (c) removed all references to County Clerk and Deputy County Clerk from the form;
    (d) removed the signature line for the issuer from the form;
    (2) Required the Deputy Clerks to use the new form when issuing marriage licenses; and
    (3) Forbid the Deputy County Clerks from issuing licenses in their capacity of Deputy County Clerk, requiring them instead to issue licenses as Notary Publics.

    Clerk Davis has been adamant that the licenses issued are invalid and “not worth the paper that they are printed on”. She may be right. The licenses do not appear to comport with the requirements of Kentucky law, which require that licenses be issued through the office of County Clerk and be signed by the County Clerk or a Deputy County Clerk. What she does not tell us, though, and what we will never hear from from her, the Liberty Counsel, the politicians so loudly defending her “religious freedom”, or the syncophants singing the tune “Because Jesus”, is that her actions alone, are the reason that the licenses may not be “worth the paper they are printed on”.

    We will have to see what Judge Bunning does with respect to the facts exposed at the status hearing, but it ought to be evident to anyone by the willfully ignorant that Clerk Davis is operating in open defiance of Kentucky law and the orders of the Federal District Court of the Eastern District of Kentucky.

  17. posted by tom Jefferson 3rd on

    I think it’s so peculiar how the people who rush to support Davis religious freedom, didn’t seem to care about the religious freedom of the other country employees or anyone else on county.

    I believe in religious freedom. Not religious freedom with a little hanging astrix.

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