According to CNN, Kim Davis is back to work as County Clerk of Rowan County, Kentucky. But she’s still refusing to issue marriage licenses for gays that bear her name. She’s suggesting a “solution”, one that I don’t like nor think is legal:
Kim Davis, county clerk of Rowan County, Kentucky, returned to work Monday, saying she will not issue any marriage licenses that go against her religious beliefs — but she left the door open for her deputies to continue to issue marriage licenses to same-sex couples, as long as those documents do not have Davis’ name or title on them.
If you look at the video on the CNN page, you’ll say that she says that her deputy clerks can still issue licenses, but only without her name title, or authority on them. Indeed, she says, as did the judge who freed her, that such licenses might not even be valid. HuffPo quotes Davis:
“I want the whole world to know … If any [deputy clerk] feels that they must issue an unauthorized license to avoid being thrown in jail, I understand their tough choice, and I will take no action against them,” she said. “However, any unauthorized license that they issue will not have my name, my title or my authority on it. Instead, the license will state that they are issued pursuant to a federal court order.”
Without authority of the clerk, who is in charge of this issue, how can such licenses possibly be legal? CNN adds this:
U.S. District Judge David Bunning “indicated last week that he was willing to accept altered marriage license even though he was not certain of their validity,” Davis said. “I, too, have great doubts whether the license issued under these conditions are even valid.”
Well, we can let the courts rule on their validity. My own take, and of course I’m not a legal expert, is that licenses issued by a county must probably by law be authorized by the county clerk and bear her signature. Allowing her to get away with that is a religious-accommodation burden that is too onerous to stand. And if such is the case, she’s still in violation of the law. And a law-school professor with expertise in the area agrees with me. In a sensitive and informative article on PuffHo, my Chicago law school colleague and First-Amendment expert Geoffrey Stone goes through the history of trying to accommodate religious beliefs with government requirements, and argues, as have the courts, that there can be reasonable and non-onerous accommodations. But, after his analysis, he concludes this:
In the end, then, it is fair to say that, as a general matter, there is no obvious “right” answer. This is a difficult issue. There is a “right” answer, however, in the Kim Davis situation. Indeed, her case is not even a hard one. A public official, who acts as an agent of the government, simply cannot place her own religious beliefs above those of the constitutional obligations of the state and the constitutional rights of our citizens. Davis should have found a way to reconcile her personal religious beliefs with her official responsibilities, or she should have resigned.
Davis is the moral equivalent of the elevator operator in a government building who, for her own religious reasons, refuses to let gays and lesbians ride in “her” elevator, which is the only one in the building. This, quite simply, she cannot do.
It’s time to either put this bigoted woman back in jail, remove her from office somehow, or urge her to resign—something she probably won’t do since she thinks she’s following God’s will. It is a blot on Kentucky that she has so many ardent supporters.
Meanwhile, reader Paul informed me that Planting for Peace, a pro-gay-right organization, has put up a billboard in Kim Davis’s hometown, emphasizing how religious bigots like her cherry-pick scripture (see also the NBC News piece on this). It’s great!
The issue of validity of the licenses is debated, but my understanding is that the form used in Rowan County has a space for the clerk to authorize the license, but that Kentucky statute does not require the authorization of the clerk, so that licenses issued by deputy clerks are valid. This is the opinion of the Rowan County Attorney, and it seems to me that his opinion may well be dispositive.
This seems to imply that her job is unnecessary; can’t they just make her redundant?
Anyhow, it must soon be time for her to get married again, perhaps that will distract her
I’m curious to know what the judge had in mind when he chose to release her from jail. Seems like he had not heard this opinion of the County Attorney. I can easily understand the desire to use the minimum enforcement to accomplish the goal, but it looks like he jumped the gun. I would have let her stew a while during some fact-finding.
I wonder if there wasn’t some back-channel communication. I.e. while her lawyers were trumpeting to the world how she wouldn’t back down, maybe in the judges office they were saying “she’s agreed to back down so long as you don’t make her do a public statement to that effect.”
I greatly disagree with your statement ‘it looks like he jumped the gun.’ To me, in hindsight it looks like he played it perfectly; he didn’t keep her in jail very long, but he got the non-interfering conduct he wanted.
I also agree. In fact, the judge short-circuited the growing Huckleby-Cruz media-storming political circus, while leaving open the option of doing the same again and again as needed. Even Faux News would get tired of following her story, if she returned to jail in contempt of court multiple times, only to let the back-up of marriage licenses get issued, and then released her, again. Revolving doors make boring news.
Back to jail, I hope!
Jail should not be an option for non-violent offenders. Although she is using state force to oppress citizens, she needs mental help. We should always cage humans only as a last resort when they are a violent physical threat to others.
So, your solution for ALL non-violent offenders is mental health treatment. Do you think criminals who rip off thousands of investors and cannot pay them back and con artists in general should be “rehabilitated” by friendly chats with a psychiatrist? And just where would these mental health professionals come from? Do you think Bernie Madoff’s victims would have received justice if Bernie just was stripped of his assets, except for the money needed to pay for weekly visits to a psychiatrist?
Yes, there are many non-violent offenders who should not be in jail. But, there are many who should. Prison time would be appropriate for non-violent offenders who ruined other people’s lives.
I gather that, regarding stealing others money, there is a minimum monetary threshold beyond which at least a life sentence is warranted, whereas there exist cases where murderers get something less than a life sentence, if only at least parole due to good behavior in prison?
The only problem with a fine (as opposed to jail) in this specific case is that she would have had plenty of misguided supporters who would have paid it and it would cost her nothing.
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That’s not the only problem. A fine, regardless of who pays it, would not have the effect of enforcing compliance with the court’s order, which is the whole point here.
Also note that jail in this case does not mean a prison sentence. It means cooling her heels in lockup at the courthouse until she agrees to comply. It’s not meant to be punitive; it’s meant to be coercive: she doesn’t get to go home until this thing is settled.
I wish Christopher Hitchens was around to write about this. I miss his style, wit, and wisdom.
I want to make it clear this is a great website and the first thing I read everyday. Not only the host but the commentators.
Still, there was nothing like reading Hitchens on a current event.
I loved him as well for the same reasons. However, I think you are fortunate to be able to post on a site where Dr. Coyne has done so much to educate the general public and you ought to give him respect for going forward with the effort to enlighten so many about science.
To miss one is not to diss the other. It is simply to miss the one.
Aside from all the other legal, rights issues, at what point do we declare someone insane and incompetent? I mean, this woman is so off the deep end is a total tortured slave to an imaginary supernatural supreme master that she can’t function in reality. I guess the voters get what they deserve but this is not a democracy where a majority rules and crushes minority individual rights. In a warped but more morally consistent way, she should refuse to issue ANY marriage licenses until the state law is adjusted and conformed with the Federal. There are legit legal issues but she is not to be the final judge. The exact issue (but the details are reversed) is happening with medical marijuana where several state laws conflict with the Federal. No matter how much we want moral and legal rights to expand, our system is currently dysfunctional and the prez and congress are equal to blame. This needs to be addressed.
Kim Davis is neither ‘insane’ nor ‘incompetent’ in the psychological and/or legal sense of those terms. I’d really hate to see any legislation aimed at broadening those definitions — for my own protection, if nothing else. How many times have we seen atheism declared a form of insanity?
Christianity can certainly be toxic, but I think it much better to address the specific problems with doctrine by pointing them out in the public square, rather than working on making faith beliefs illegal or whatever. We haven’t been pushing back that long. The whole point of new atheism was to abandon accomodationism for a more direct approach.
That is in fact what she tried to do; stop her office from issuing any licenses at all. Even to straight couples. But the courts have ruled that this is unconstitutional too: the government cannot refuse to perform a governmental function for all legally entitled citizens because they don’t want to perform it for people of a certain race, sex, age, and now orientation.
IANAL but I think its very standard legal practice in a variety of jobs to allow a legal stand-in or designated proxy. I believe the deputy clerks count and there will be no issue with them signing licenses.
But she’s also asking that the licenses read something like ‘issued under court order…’ rather than ‘issued by the Rowan County Clerk’s office…’ I don’t think the courts or even the state/county government will necessarily buy that.
Frankly, I’m surprised she didn’t want the licenses to read “issued under court order because KIM DAVIS, who is the real authority as KIM DAVIS the County Clerk, refuses to do anything KIM DAVIS doesn’t approve of because KIM DAVIS has a direct line to God and the religious conscience of KIM DAVIS is sacred so this document is not sacred and barely legal without the authorized notorization of KIM DAVIS the authority who follows GOD.”
That way it’s perfectly clear that no, these marriages do not have HER blessing.
Heh, well the whole question may be somewhat moot. I imagine the deputy clerks will probably ignore her order on the rewording and keep just using whatever wording they were using last week.
“In Leviticus 18:22, the text states, “You shall not lie with a male as with a woman; it is an abomination.” In 20:13, Leviticus specifies that both parties in male-male sex shall “be put to death.”
That seems open-and-shut, though one might wonder why Davis, Cruz, Huckabee and the like seek only to deny gays marriage, rather than execute them as God decreed.
But here’s the thing. Christian theology says the New Testament amends the Old: what happened in the days of the apostles amends what came long before. Acts 13:39: “By this Jesus everyone who believes is set free from all those sins from which you could not be freed by the law of Moses.” (Acts is the founding text of Pentecostalism.) Jesus overturned existing law about sin, the Sabbath, the afterlife and many other matters. His ministry proclaimed “a new covenant, not of letter but of spirit; for the letter kills, but the spirit gives life.” (II Corinthians 3:6.) “Letter” in this context means archaic law—that is, the law Davis, Cruz, and Huckabee want applied today.”
http://www.newyorker.com/news/news-desk/kim-davis-needs-to-read-the-bible-again
Kim Davis is falling short of her own creed. Why is she not professing for the execution of all gays? There is an unironic sense of hypocrisy here.
She does need mental health counseling.
She may very well need mental health counseling. But, under this logic, so do the other tens of millions who subscribe to her delusions. Also, if she did have counseling it would probably be with a Christian one who would validate her worldview. Unfortunately, only a few very like Kim Davis will ever change their minds and accept reality. Their delusion is what helps them get through the day. It would be much too painful for them to consider changing. There are certainly instances of religious fanatics eventually becoming atheists, but statistically speaking the number is quite small. Our world is becoming more secular, I think, because secular people are speaking out more and hence the younger generation is being exposed to ideas that the previous generations were not. This is why, as discussed in yesterday’s post, that the work Jerry does in making the case for atheism is all for the good.
Indeed, WEIT covers the possibility of universal mental illness:
https://whyevolutionistrue.wordpress.com/2013/06/02/is-religion-a-mental-illness/
And, yes, Xians love to validate. They should all get their own validation stamps after first communion, then they will not only feel superior, but authorized.
Yes me too, but I became a librarian for the rubber stamps
I can’t help it. It has become an involuntary reflex. Every time I hear or read the name Mike Huckabee, I retch. In my view, this abomination of a human being is far worse than the misguided, ignorant, pitiable and rather pathetic Kim Davis.
I largely agree with your characterizations of both Huckabee and Davis. But, the apparent self assured smugness of Davis sort of offsets the pity I tend to feel for her.
That’s the reaction I have to Huckabee too.
“.. or urge her to resign — something she probably won’t do since she thinks she’s following God’s will.”
And I bet the idea of giving up $80K a year for your principles is a bit of a stumbling block there as well …
Posted in the Diso-Toot! Good on ‘ya, Ben! I see from the comments over there the expected smirking over your naive essay while ‘rebutting’ it by special pleading and not a single shred of evidence.
In a way I am a little surprised since I know that that site is supposed to be about ID and heavens no, not about… you know… (yaweh). And yet there it is, out in the open.
Whoops, supposed to be in the next post. sorry.
As someone who is not very familiar with American law, can someone here explain why she can’t simply be fired or moved to a new job if she is refusing to fulfil her obligations? The simplest solution (unless I am missing something…) would be to simply re-assign her to a new job that doesn’t require her to approve these mariage licenses.
She’s an elected official. Other than the voters, there is no boss over her with the authority to fire her.
What Greg said. The Kentucky legislature can technically impeach her, but impeachment is extremely rare and even under normal circumstances is politically difficult to accomplish. If the KY legislators think a large portion of the voting public agree with her, then it would be even more politically difficult than normal circumstances.
I should also add that she is, in essence, asking for a reassignment-type solution. A county clerk’s office can have many functions. It appears that what she wants is for her deputies to handle the marriage licensing from now on while she attends to the other stuff. This might be the solution what eventually gets accepted by Bunning – IF he thinks that the wording on the licenses and the deputies’ signing them are both legal.
I’ll bet Judge Bunning wishes now he had insisted on a full-Battleship-Missouri unconditional surrender before releasing Davis. He should hold her in contempt again. Except this time it should be criminal contempt. Such a charge triggers a host of procedural and constitutional safeguards, of course, since a convicted contemnor faces potential felony penalties, including a specified term of imprisonment (rather than having the jailhouse keys in his or her own pocket).
I can’t speak to Kentucky law, but in the state where I practice, the governor is empowered to suspend a public official who is indicted for a felony offense, and to name a temporary replacement during the pendency of the criminal proceedings.
I don’t really see it that way. Right now, she’s blustering. He certainly doesn’t have to agree to her terms and it remains to be seen what she’ll do if he doesn’t. Remember, three days ago it was “I will interfere the moment I go back.” Now its “I won’t interfere if you let me change the wording.” Three days from now, even without any additional time in jail, her demands may have weakened even further.
At this point, were I Bunning, I would treat ignore the public rhetoric as mere grandstanding and leave her free until she actually impedes the distribution of licenses. To borrow Shakespeare, at this point her threats are nothing more than a tale told by an idiot, full of sound and fury, signifying nothing.
Can she not just be fired for not doing her job?
No, she’s elected.
I agree Ken. What I find irritating is that this question has been asked and answered about a dozen times in this and the previous posts. I wish some posters would read the thread(s) before posting.
I sense the slammer doors opening.
Reblogged this on Fairy JerBear's Queer World News, Views & More From The City Different – Santa Fe, NM and commented:
An analysis of the current situation vis-à-vis the Kim Davis same-sex marriage license debacle.
I think the state and the judge are giving her enough rope to hang herself.
I think the governor’s thinking for saying these are legal is: yes she has removed the county name from the license and not allowed her deputies to use the title of deputy clerk. But she as County Clerk is still allowing them to be issued and even though the signer doesn’t say he is a deputy clerk on the form, he is still a deputy clerk and can legally issue these licenses. Next step: will she interfere with the filing of the completed marriage certificates and licenses?
Why the heck is a job like county clerk an elected position? Effing stupid idea in the first place if you ask me.
Kim Davis is not having her rights as a Christian taken away, she’s trying to force her views on others. Who the f**k does she think she is anyway? I’ve (obviously) had enough of this woman. She’s perfectly entitled to believe whatever she wants. She doesn’t have the right to force others to conform to her beliefs, especially in contravention of the law.
I agree with you. I also think, contra Eric, that the court should not be making any concessions to her. Neither “the people” or the justice system owe her a damn thing. There is no reason for others to be iconvenienced, let alone having their legal rights obstructed, because of her illegal and unethical behavior.
I don’t want her punished for the sake of punishing her, I want her deprived of her ability to punish others via illegal behavior. Society does not owe her a right to express her bigotry in an illegal way as she has been doing, and society will not be negatively affected if the justice system were to use all legal means available to prevent her illegal behavior.
I have to disagree. While I thoroughly condemn her actions, I think judicial restraint, not revenge, should be operative. There is a great deal to be gained when the courts deal as mildly as possible in the moment. This gives society a certain relaxed feeling toward their government. Otherwise you end up exacerbating an emotional situation. In a few years many of the participants and observers will be different people with views adjusted according to their view of how well behaved the judge was.
It looks like people will be able to get marriage licenses from now on, and Kim Davis will be resorbed by obscurity where she belongs. If not, the judge can bring down the hammer all over again.
I understand your position, but yes it looks like we disagree. I am not sure you understand mine though. I attempted to make clear that I do not want the justice system to punish Kim Davis let alone to seek revenge against her!
Yes, I caught that caveat. I suppose we disagree on the expected result of a stricter enforcement. I think it would rile up the villagers and make Davis more of a celebrity/martyr than she is now.
She’s stated her demands in public but that is not the same as acting on them in her job; we have yet to see how Bunning will react to the latter. Just because of the pace of legal action, I don’t think we’ll know the answer to that for about a week, as Bunning has asked for regular updates from the office regarding her conduct but AFAIK it’s not daily, it’s weekly. So he will get the first report and then respond to it, but probably not this week.
I would argue that as of today, no one is getting inconvenienced or having their legal rights obstructed. The county office is handing out licenses to gay couples. Its done that for the past week. So why should she go back to jail? What current conduct of hers is breaching the contempt agreement?
I would agree with you that there is a very strong likelihood that she’ll be send back to jail for illegal behavior if she modifies the wording on the licenses so that gay licenses read differently than straight ones. I would also agree with you that there is a weaker but still realistic possibility that Bunning will call her in and compel her to not put ‘by court order’ on the licenses or make any other extraneous changes to the wording, if she follows through with her threat. We’ll have to see about that in the upcoming days. But as long as the office is handing out licenses, and those licenses are the same for gays and straights, and the wording doesn’t contain any subtextual “f.u. gays this doesn’t count” message, I see no reason for her to be in jail.
I don’t think I said she should go back to jail, and if I gave that impression it was unintentional.
I don’t think she should have been let out of jail* in the first place. She should be required to agree to comply with the law before she is released. She didn’t do that. She was allowed to make a deal that allows her to continue to break the law as long as she doesn’t encourage or require others to break the law. She isn’t merely an employee. She is an elected official, a servant of the people and a direct representative of the government. There is good reason why people in such positions are held to a higher standard of compliance with the law vs personal freedoms compared to an ordinary citizen.
*Though I’d be perfectly fine with something else, like house arrest or merely suspension from her job.
Update (well, this was yesterday but I just found it): according to this article, she issued a license to a gay couple with the altered wording yesterday, and the KY Attorney General has already said it’s legal. So it appears that, at least for now, she isn’t doing anything illegal even with the modified licenses.
I hope things continue to go smoothly.
I am not sure if it was your intent to be more positive with the wording “. . . she issued a license to a gay couple . . .,” but that could be misleading if one doesn’t actually go and read the article. She didn’t issue the altered license, she [stood] aside while her deputy issued a newly altered marriage license to a lesbian couple..
Which is the deal she made, but is quite different from merely obeying the law.
“I don’t want to have this conflict. I don’t want to be in the spotlight…
I’m just a person… who wants to… be with my family. I just want to serve my neighbors quietly without violating my conscience.”
*cough* Just resign already. *cough*
As someone on Ed Brayton’s blog pointed out, her idea of “not being in the spotlight” was to file and additional civil suit against the Governor of Kentucky yesterday.
Here is something that just came to my mind. I assume that during her tenure as county clerk Davis was not present in the office every single minute it was open. Certainly, she was off for vacation, sick days or other reasons. During her absences did the deputy clerks issue licenses in her name? If so, this would undermine her argument that only she could issue licenses. Perhaps she would say that the deputies issued licenses in her name during her absences because she specifically delegated the authority. I wonder if anybody has seen this question addressed.
You beat me to it.
If there is not a set policy if the elected official is unable to do their job for a temporary time, then I would tend to assume that her positions signatory is not absolutely required.
And her assertion would make me question her ethics even more. I find it very hard to believe this has not come up before.
Has no one in her position ever gone on vacation, gotten sick, or had to travel for a death in the family?
What did the office do then? Does she not know, or is she simply not telling?
If she didn’t ask or find out then she isn’t doing her job, yet again.
Such a policy should be in writing somewhere. A position like hers tend to have a big thick binder with procedures and policy. Often several of them.
Again, I find it hard to believe that no other person in the elected position has never gone on vacation, been sick, gone to a funeral and been forced to cover this situation.