Kim Davis, the Rule of Law, and Freedom

Yesterday Kim Davis, the now famous clerk from Kentucky, was thrown in jail. Her crime? She refused to allow marriage licenses to go to same sex couples with her name on them. She says that goes against her religious beliefs. After being criticized, publicly shamed, and harrassed by those who disagree with her, she was locked up.

She was arrested because she refused to issue marriage licenses to same sex couples, after a judge said she had to. She was held in contempt of court by U.S. District Judge David Bunning.

And why not? We are a nation of laws. She was elected to serve the people. There are people in her county that now have the legal right to get married, and she refused to let them. (It should be noted, that the same couples can go to many other county clerks to get their licenses.)

Some say that law she refused to follow is unjust. It is a ruling made by the Supreme Court, which cannot, in fact, create law.

This AFA article on the subject quotes the KY Constitution:

Only a marriage between one man and one woman shall be valid or recognized as a marriage in Kentucky. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized. “

When Davis took office, she promised to follow that law. And she still is.

But the Supeme Court’s ruling says laws like that are unconstitutional. Obergefell v. Hodges said that states must recognize marriages of same sex couples from other states. But then went further (and this is where they created law, rather than judged it) They appealed to the 14th amendment and said that everyone should be able to marry the same sex if they chose to. After that interpretation of the Constitution, Wikipedia explains what happened next:

“The Court examined the nature of fundamental rights guaranteed to all by the Constitution, the harm done to individuals by delaying the implementation of such rights while the democratic process plays out, and the evolving understanding of discrimination and inequality that has developed greatly since Baker.” (emphasis added)

Once they had decided that every state must recognize the marriages, the next step was to short circuit the democratic process, so their ruling decreed that it should be legal in all 50 states and American territories for same sex couples to get married.

So now we have states with legally passed constitutional amendments and the 5 judges who sit on the Supreme Court at odds with each other. And one clerk who promised to follow the law, before the law changed. (There are actually more clerks in the country like this, but Davis is the one in the news)

That’s her job. She follows the law of Kentucky in regard to her duties as County Clerk. Part of that is issuing marriage licenses. Her position is elected, and she cannot be fired. She could be impeached and removed from office. This news article explains how:

“The Supreme Court of Kentucky has a constitutional authority where they can remove a circuit clerk, but not a county clerk. And so that really is an executive branch function. The governor would have to be in charge of that. There may have to be a special session called to deal with it, or refer to the department of local government,” said Professor Connelly.

A vacancy in the office of the county clerk is filled by the county judge executive or by the mayor until a successor is elected. Even if Davis is criminally charged, she still won’t be removed from office immediately.”

And before we get on our high horse about the Rule of Law in America, let’s remember that she is not the first elected official to refuse to follow a law because it went against their conscience. That article from The Daily Signal lists 10 people in government positions who refused to follow the law about marriage. None of them ended up in jail. And all of those people took their stand for same sex marriage.

Her only crime is standing on her 1st amendment rights. She is not in jail because she won’t issue marriage certificates to same sex couples. She is in jail because she refused an order from a judge. That order was for her to act against her conscience, and against her religious beliefs. She is being held for contempt, not for breaking a law.

Should she be removed from office? Sure, she can no longer perform her duties. I’m not sure why she won’t resign. But that doesn’t make her a criminal. She should not be in jail, held in contempt, because she is exercising her rights. By holding her in contempt for refusing to follow a court order to execute a law that goes against her religious beliefs, the judge is denying her 1st amendment rights.

In her place, I would have resigned the moment I found that I could no longer do what I was being asked to do. But she didn’t. And that brings consequences.

But jail time should not be one of them. She is being held in contempt of court because she refuses to violate her religious beliefs. Remove her from office because she won’t do what the law now says she must, but do not jail a woman because she won’t betray her religion.

Impeach her, remove her from office. But jailing someone for exercising a right that is is promised to each one of us in the US Constitution threatens the freedom of every American citizen. 

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