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!
