Thursday, the story of the Kentucky county clerk who refused to issue marriage licenses (now that same-sex couples can marry) reached its inevitable conclusion. Having been turned away by the Supreme Court, Davis was out of legal options for delaying the moment of truth: She had to either obey a court order to issue marriage licenses, including licenses to same-sex couples, or be in contempt of court.
She chose contempt and has been jailed, while her office has begun issuing licenses in her absence. Federal Judge David Bunning had the lesser option of fining her, but concluded (correctly, I think) that fines would simply delay the resolution of the case: Davis would not pay them and would continue showing contempt for the court’s order, forcing Bunning to jail her at some later date.
Response. Presidential candidates courting the religious-right vote immediately began characterizing Davis as a martyr for her beliefs. Ted Cruz issued a statement beginning with this line:
Today, judicial lawlessness crossed into judicial tyranny. Today, for the first time ever, the government arrested a Christian woman for living according to her faith.
Mike Huckabee compared Davis to Abraham Lincoln, who “disregarded the Dred Scott 1857 decision that said black people aren’t fully human.” [1] He also tweeted that “Kim Davis in federal custody removes all doubts about the criminalization of Christianity in this country”, and is planning a rally tomorrow outside the jail where she’s being held. (Some other Republican candidates have been less supportive. Lindsey Graham has been the most blunt: “As a public official, comply with the law or resign.”)
Other voices on the right portray Davis in larger-than-life terms. RedState.com founder Erick Erickson sees her case as a harbinger of civil war. Conservative Review‘s Daniel Horowitz casts Davis as this era’s Rosa Parks, and Steve Deace wants her to run for president. (Critics compare her to a different character in the civil rights movement: George Wallace standing in the doorway of the University of Alabama, unsuccessfully trying to block integration.)
Martyrdom. The Christian tradition is rich with martyr stories, going all the way back to the stoning of Stephen and the imprisonment of Paul in the New Testament. In the Lutheran school I attended through eighth grade, we were sometimes asked to imagine facing a choice between denying our faith and punishment or death. (I have heard similar stories from Catholics.) Like Muslim suicide bombers, we were promised glories in Heaven that would more than compensate for any earthly suffering.
But is that what’s happening here? Does Kim Davis deserve the enthusiastic admiration of conservative Christians, and even the grudging respect of those who disagree with the stand she’s taking? Or is she undermining the rule of law and usurping the powers of her office to implement her personal religious agenda? [2]
What the judge said. Before deciding that question, it’s worthwhile to examine the court order she’s defying. In that order, Judge Bunning considers Davis’ arguments and explains why he is rejecting them.
Davis argues that by signing a license for a same-sex marriage, she would be expressing approval of such marriages, which her religion denies. Bunning counters:
The form does not require the county clerk to condone or endorse same-sex marriage on religious or moral grounds. It simply asks the county clerk to certify that the information provided is accurate and that the couple is qualified to marry under Kentucky law. Davis’ religious convictions have no bearing on this purely legal inquiry.
(Let me amplify that a little: Marriage-under-the-law and marriage-in-the-eyes-of-God have always been two different concepts. No one is asking Davis to affirm that same-sex marriages are valid in the eyes of God.)
A footnote spells out what the legal qualifications are:
A couple is “legally qualified” to marry if both individuals are over the age of eighteen, mentally competent, unrelated to each other and currently unmarried.
Davis also protests on free-speech grounds, claiming that an order that she sign the license form is compelled speech banned by the First Amendment. Bunning disagrees:
Because her speech (in the form of her refusal to issue marriage licenses) is a product of her official duties, it likely is not entitled to First Amendment protection.
In support of this view, he quotes a precedent from 1971:
When a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom.
And Bunning does not see a violation of the First Amendment’s free-exercise-of-religion guarantee:
Davis remains free to practice her Apostolic Christian beliefs. She may continue to attend church twice a week, participate in Bible Study and minister to female inmates at the Rowan County Jail. She is even free to believe that marriage is a union between one man and one woman, as many Americans do. However, her religious convictions cannot excuse her from performing the duties that she took an oath to perform as Rowan County Clerk.
Bunning does not mention this quote, but the principle goes back to an 1892 decision in which Oliver Wendell Holmes ruled against a policeman fired for something he said:
The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.
Davis is perfectly free to practice her religion in her personal life, but when she assumes the role of a public official, she has to act according to law. [3]
Cashing in? Hypocrisy? It’s a safe bet that St. Paul’s imprisonment wasn’t part of his grand plan to become a celebrity and get rich. But Dan Savage has been making this prediction since Davis first hit the headlines:
No one is stating the obvious: this isn’t about Kim Davis standing up for her supposed principles—proof in a moment—it’s about Kim Davis cashing in. There’s a big pile of sweet, sweet bigot money out there waiting for her. If the owners of a pizza parlor could raise a million dollars just by threatening not to cater the gay wedding no one asked them to cater… just imagine how much of that sweet, sweet bigot money Kim Davis is going to rake in. I’m sure Kim Davis is already imagining it.
In an interview on MSNBC, Savage spelled it out:
She will have written for her a ghost-written book, she will go on the lecture circuit, and she’ll never have to do an honest day’s work again.
Savage’s “proof in a moment” is a reference to Davis’ own checkered marital history: She’s been married four times and divorced three times, a practice which (unlike homosexuality) is explicitly condemned by Jesus in the Gospels.
Ad hoc purity. I have a more general complaint than hypocrisy, one that applies not just to government officials like Davis, but also to the baker [4] and florist who have been claiming persecution when they are not allowed to discriminate against same-sex couples: Their position relies on two principles, and one of them they just made up for this purpose.
The first principle is the one right-wing Christians always want to focus on: Homosexuality is sinful. Whether or not the rest of us agree, it’s incontestable that they believe it and have for a long, long time.
But since no one is asking them to commit homosexual acts, that principle by itself doesn’t create an issue. Their position requires a second principle: Christians should live according to a standard of purity that doesn’t allow them to involve themselves in other people’s sins.
Kim Davis has to imagine a pretty broad purity zone around herself, if verifying that two men are “over the age of eighteen, mentally competent, unrelated to each other and currently unmarried” involves her in the sin of their homosexuality. And the bakers who won’t sell a cake to a same-sex wedding reception — giving them no connection whatsoever to the actual marriage ceremony — must have an even broader purity zone.
Religious purity.
Now, there are religious people who try to live their lives according to extremely high standards of purity (like the Jain monks who wear masks so as not to kill any tiny insects they might otherwise breath in). But that does not include any of the right-wing Christians who are claiming persecution. Their Christian practice did not require an expanded purity zone until now, and even now it only applies to situations that involve gays.
For example, apparently the clerks who gave Kim Davis her marriage licenses didn’t balk at the fact that (according to Jesus) some of those marriages were adulterous. I’ll bet she didn’t have any trouble renting a hall or buying flowers or cakes. Even the most conservative Christians simply didn’t care about this kind of purity before same-sex marriage became legal, and still don’t care about it in any other context.
Here’s what that says to me: This isn’t about religion, not when it depends on a “sincerely held belief” that was invented solely for this purpose. So either it’s about personal animus against gays, or it’s about protesting the politics of same-sex marriage. Neither is the kind of moral or constitutional issue that Kim Davis’ defenders want to make it.
[1] I’m not sure which act of Lincoln’s Huckabee is referring to, and I suspect he doesn’t know either. Dred Scott laid out some general principles about slavery before Lincoln was elected, but what specifically did the Supreme Court order Lincoln to do? How did he defy that order?
[2] As satirized in this image and this story from The Onion. I suspect conservative Christians are picturing a world in which only conservative Christian public officials have the right to bend their duties around their religion. But a friend suggested this example, which corresponds pretty well to the Davis case: What if a Jewish meat inspector decides that his religious convictions require him to reject all pork? I’ve also seen this example: What if an official refuses to issue hunting and fishing licenses, because he takes “Thou shalt not kill” literally?
Some of the Kim Davis satire doesn’t have a political point, it’s just funny. For more humor, check out the hijacked #FreeKimDavis tag on Twitter.
[3] A common complaint by conservative pundits is that liberals are fine with liberal officials ignoring laws. President Obama’s recent executive orders on immigration are a frequently cited example. But there are some significant differences between the two cases, as becomes clear when you compare the justifications.
Obama’s action is justified in a memo from the Justice Department’s Office of Legal Counsel (which I summarized at the time). Unlike Davis, the OLC memo never appeals to an authority higher than the law.
Instead, the memo outlines the executive branch’s strategy for handling the impossible situation Congress has created: The law would deport 11.3 million undocumented immigrants, but Congress has provided funding for dealing with only a tiny fraction of that number. Consequently, the administration must prioritize whom to deport.
When a court disagreed with the administration’s reasoning and issued an injunction against parts of the order, the administration stopped implementing it — except for one mix-up, which is being rectified without the judge needing to fine or jail anyone for contempt.
[4] As Dan Savage might have predicted, the bakers have made out like bandits. In the United States, being persecuted as a Christian is extremely profitable.
The Weekly Sift 
Comments
One thing you didn’t mention is Religious Freedom Restoration Act, which does require an employer to make a “reasonable accommodation” for an employee’s religious beliefs, the South Carolina version of which would apply to Ms. Davis. As I understand she has been offered several such accommodations and has refused all of them, confirming the point that this is not about religious beliefs, but is all about raking in the bigot cash.
The clerks in her office work for her and anything they do, it done under her authority so if they are sign licences, it’s still her name on them. There is only one person who has the official power in that office to issue licences and it’s her, no one else. Everyone else operates under her authority. So her lawyer is correct, all the licences issued after her jailing are invalid.
That is incorrect, and her “lawyer” is incorrect. The licenses issued by the Religious PERSECUTOR’S clerks are 100% valid. 🙂
What happens when she’s out sick, or burning crosses on people’s lawns, or bombing abortion clinics, or whatever it is Davis does in her spare time when she’s not at work? A deputy or “acting clerk” is designated to cover for her, and anything they sign is just as valid as what Davis signs herself. The only difference here is that Davis refused to allow an accommodation by designating a subordinate voluntarily.
All the gay people in KY who are planning to get married should go to her county and get licenses with her name on them to spite the bigot and turn that “they can just go to the next county over” bs against these bigots.
It’s obvious that Davis is only doing this for the attention (and in the hope of a future jackpot), but the motivation behind her antics are entirely self-serving. She believes that she’s following “God’s will,” so by refusing to sign the marriage licenses, she’s merely saving her own skin (in her mind, at least). It would be very different if the outcome of Obergefell had been the opposite, and Davis was instead issuing same-sex marriage licenses in defiance of a restriction she believed was against her religion. This isn’t far-fetched; many practicing Christians, like Bishop Gene Robinson, author John Shore, and others, do not believe that homosexual acts are necessarily sinful. In that case, Davis would be putting her freedom on the line for the benefit of others, rather than just for her own, whether in this world or the next one.
Doug–Loved this one! But “Where to Begin?” (works fine in my email) does not link to your website and has an “xxx” under the area for the European refugees. Thought you’d want to know.
That was a glitch. I pushed the Publish button before the piece was ready and had to delete the post. The real version will be out soon.
Why has not one Christian refused to sell guns or licenses? Isn’t murder one of the big 10?
Because selling a gun isn’t murder, the two are unrelated to each other.
By that logic, issuing a marriage license to a same-sex couple isn’t the same thing as gay sex, either.
Exactly, Larry.
Something rarely mentioned in all the Kim Davis stories from both sides: she may have violated the First Amendment rights of the deputy clerks in her office.
Five of her six deputy clerks told the judge they would have issued marriage licenses for any couple were it not for Kim Davis’s orders. (The sixth, Davis’s son, said he wouldn’t.) The way I read it, Davis forced those deputy clerks to follow her religious beliefs and act as she would, regardless of what beliefs the clerks held. You’d think the Christianists rallying behind Davis would have a problem with that, but I haven’t heard anything about their reaction to that particular detail.
The federal judge in this case asked her if she would allow her deputy clerks to issue licenses. She said no, which was her last possible “stay out of jail” option. Kim Davis was given every chance to stop breaking the law and do her job as an elected official, but she refused them all. She deserved to go to jail.
When she gets out, she’ll likely resign her post because she can fetch a hefty sum on the Religious “Martyr” Travelling Circus. Why bother with a government job when you can get paid to preach hate? But her martyrdom won’t last forever, and neither will her ability to draw in a crowd. By this time next year, Kim Davis won’t even be the punchline to a bad joke.
At least George Wallace will be remembered for his “stand”.
Well done. But let’s recall that the actual meaning of “martyr” is “witness.” It’s not about any kind of sacrifice. And as another kind of Christian, I contend that any action or statement that tries to get in between God and somebody else bears false witness (another one of those big 10) (her behavior may also have something to do with idolatry).
Davis says she was converted (and saved from her earlier sin) by the experience of her (4th) mother-in-law’s death. I’d like to hear more about that.
The modern interpretation of ‘martyr’ requires dying for The Cause.
Davis merely has to resign from the work she refuses to perform in order to avoid performing the work she refuses to perform. Work At Will (Whether she was elected or not, she can retire/resign.).
So yes, Ayatollah Davis is a grifter.
To the blog writer: TY. This is a relatively comprehensive ‘wrap up’ of the sub-issues.
This is a complete aside, but one great example of cashing in on the “sweet bigot money” is Sarah Palin. One thing she obviously took away from her disastrous Vice-Presidential campaign in 2008 was that running for President or Vice-President could make her rich. Wasn’t she the front runner for the Republican nomination at this point in the cycle for the 2012 election? I predicted at the time (to my wife and friends, not a very wide audience) that she would run so long as she made money. She would drop out of the race once it start costing her money on silly things like a campaign organization. That is just about what happened.
How did I know this would happen? I’d seen it when I lived in Louisiana with KKK and American Nazi leader David Duke. After his one election to the state legislature, he discovered that running was a lot more lucrative than winning. However, he took it to such an extreme that he wound up serving jail time for fraud.
Interestingly, the candidate who seems to be on that arc in this election is Donald Trump. I saw early reports that he was not building actual campaign organizations in the early primary states, though I haven’t heard anything about this recently. The question is what is he after? The millions he would stand to make from the campaign would seem to be chump change to a billionaire. As the Weekly Sift has pointed out, his fortune does seem to be a bit of a house of cards, so maybe he actually needs the money. However, it seems like he is after something else, especially since he is at odds with Fox News, which is the springboard Sarah Palin and Kim Davis are using to make their money. Perhaps Trump is after the publicity for his various businesses, though that publicity has cost him money with NBC. Anyone know what he may be after?
One last aspect of the phenomena of candidates running for office just to make money, if it is so obvious to a common schmuck like me, why hasn’t anyone in the press picked up on it? Illuminating the practice might at least slow some of it down. Folks like Sarah Palin might make a whole lot less money if it were brought to light that making money was what she was really interested in.
Trump is a next-quarter narcissist who looks no further than his current glory pile.
The press doesn’t report on the commercialization because it’s also their source. Public financing or a campaign season of reasonable length or limited to reasonable, realistic candidates with ideas makes for much less lucrative television and fewer books for reporters.
(Trump, etc…) “Sarah Palin might make a whole lot less money if it were brought to light that making money was what she was really interested in”
nah, the media loves grifters: “Why do you hate your betters making a profit? Stop your envy!”
Huckabee’s recognition (condemnation?) of Davis criminalizing (Davis’s) ‘Christianity’ is surprising. I can’t believe Huckabee has switched over to the civil rights team, but perhaps Huckabee was interviewed after hitting the tea too hard?
I’m not sure whether or not your comment is intended as snark, so I’ll respond to it straight: When Huck refers to “criminalizing Christianity”, he means nasty secularists putting people in jail for living according their Christian principles.
The spin you’re putting on the term is one I wish more people noticed: Using Christianity as an excuse to break the law does indeed criminalize it.
Yes snark, and yes the Huckster deserves the credit for his inadvertent insight.
Too many fools in this media driven society!
Using the latest logic that found Obama Care subsidy coverage legal even if the words did not specifically support that intent; the intent of the constitution was to provide equal treatment for all Americans. There is nothing in the constitution that supports the idea that religious rights are superior to other rights. When you take an oath of office you promise to uphold the law. Kim Davis has chosen to disavow that oath. The Kentucky governor should demand she be removed from office.
Those presidential candidates that call her a martyr are simply trying to win part of the evangelical Christian public in their pursuit of election. Fox News commentator Bill O’Reilly will continue his contention that there is a media war on Christianity and his ratings will go even higher.
I will be fascinating to learn a way out for the judge who put Kim Davis in jail.
At some point her term in office expires, so that would make the issue moot. Unless the county re-elects her, of course, which I wouldn’t put past them.
The Kentucky legislature could also re-jigger the marriage license process in some way. Maybe it could be like getting a passport and you could do it by mail.
The deputy who refused to defy her is her son, being groomed for this semi-hereditary position (she took over from her mother, I believe it was).
There nothing that makes them inferior either.
Your right to practice your religion ends where my nose begins.
When she took the oath of office, it was illegal for gays to marry.
It wasn’t illegal, Charles, just not recognized by the law. But she didn’t swear to uphold the law as of that moment. She swore to uphold the constitution of the state of Kentucky, which is subordinate to the Constitution of the United States. It was on the basis of the latter that SCOTUS recognized the right of all couples who meet the requirements of their state (in KY, over 18, not related by blood) to the civil benefits of state recognition of their marriages. It’s about civil recognition of a right, not legalization of something that was criminal.
OK, let’s rephrase: When she took the oath of office, the clerk’s office was not processing marriage-license applications from same-sex couples.
I’m still not seeing a generally-applicable principle that would justify Davis keeping her job while refusing to do its duties, even if those duties had changed.
I’m sure that during the Civil Rights era, there were cops who never imagined they’d be defending black children on their way to integrate a white school. If they all had decided they didn’t want to do that job, should the children have been left to the mob?
http://www.reuters.com/article/2007/04/17/us-muslims-taxis-idUSN1633289220070417
The employer can make “reasonable accommodations,” but if that is impossible or the drivers will not accept them, they need to look for another job.
They are not being asked to drink alcohol or allow dogs into their homes, any more than Kim Davis is being asked to have sex with another woman. Their freedom to practice their religion stops when it interferes with their passengers’ freedom to not be inconvenienced by the driver’s superstitions. It’s not even clear that alcohol and dogs are forbidden by Islam. I’m sure I could find plenty of practicing Muslims who own drink and own dogs. The Five Pillars of Islam do not mention either one, any more than the Nicene Creed mentions same-sex marriage.
It’s worthwhile going back to one of the early accommodation-of-religion cases: Sherbert v Verner. A Seventh Day Adventist was fired for refusing to work on Saturday, and the state refused unemployment compensation because she was fired for cause. Reading about the case, I find myself sympathizing with her. But then I’m stuck with the question: Where is the boundary between a “reasonable” accommodation of religion and the kind of insanity we’re discussing now under the guise of “religious freedom”?
There’s no hard and fast rule. In cases where accommodation is impossible or unacceptable, the courts will have to decide. Hopefully this issue will not come up any more after a while. Despite the publicity afforded cases like Davis’ and the anti-gay bakers and wedding photographers, considering how many people live in the U.S., the number of people willing to go to the mat over same-sex marriage is infinitesimal.
It’s a testament to how reasonable most people are that there hasn’t been widespread civil disobedience over the Obergefell ruling.
Reblogged this on Mysa.
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