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The Clerk, the Licenses and the Law                                                                                    

Posted at: Sep/05/2015 : Posted by: mel

Related Category: Behavior, People, The Law, Watching America,

There is nothing like a creative news story or event to pique my interest. With our 24/7 news cycle, there is always the potential to find something that questions what we thought was normal. Some of these events are about important social questions; some are a manifestation of holes in current law. Some of these unique events are the unintended consequence of change or misguided legislation. Of course, some of the spot lighted events are just about an individual seeking their 15 minutes of fame. I suspect that the defiant Kim Davis of Rowan County Kentucky may be a blending of all of these situation.

Kim Davis is the elected County Clerk of Rowan County Kentucky. By most accounts, the position of County Clerk is about shuffling paper, maintaining voter registration rolls, overseeing elections, issuing licenses and license plates, and filing reports with the state on the events and status of this county of roughly 23,000. Traditionally, the position is not controversial. Leading up to the November 2014 election, the local Morehead News only published one story on the campaign, remarking on how unusual it was for the mundane position to even be a contested election race.

Ultimately, Ms. Davis won the election, succeeding her mother in law who had held the position for nearly 40 years before announcing her retirement. On winning the election Kim Davis said “My words can never express the appreciation,” she said of the constituents who voted for her, “but I promise to each and every one that I will be the very best working clerk that I can be and will be a good steward of their tax dollars and follow the statutes of this office to the letter.”

In June 2015, the US Supreme Court ruled that gay couples have a constitutional right to wed. Davis asked to be excused from issuing marriage licenses to gay couples on the grounds that that same-sex marriage violates her religious beliefs. She further inhibited her staff from issuing licenses since as the county clerk her name would appear on the official document.

Davis is not the only clerk across the country to refuse issuing licenses, but her defiance has been amplified by David Moore and David Ermold who have visited her office repeatedly seeking a marriage license with news media in tow. “I pay your salary,” David Moore insisted on September 1st 2015, leaning over Davis’s desk after she refused to issue a license to him and his partner, David Ermold. “I pay you to discriminate against me right now, that’s what I’m paying for.” Ms. Davis said several times that her office would not issue any marriage licenses. “Under whose authority?” Mr. Ermold asked. “Under God’s authority,” she replied. This couple and others insist it’s their right to be married in their home country by the clerk whose salary comes from their tax dollars. Davis responded by retreating to her office and closing the door and window blinds.

Ms. Davis is now receiving legal services from the public interest law firm Liberty Counsel, which provides free legal assistance for “advancing religious freedom, the sanctity of life and the family,” according to its web site. An Apostolic Christian, Kim Davis wrote in her statement that her refusal to license gay marriages is “a Heaven or Hell decision." She went on to say "I want to continue to perform my duties, but I also am requesting what our Founders envisioned — that conscience and religious freedom would be protected.”

Davis has continued her refusal, citing “the authority of God.” The U.S. Supreme Court, without comment, denied her emergency request for a stay. This throws the case back to the Sixth Circuit, which will hear the appeal of Judge Bunning’s order. If she loses in the Sixth Circuit she could potentially petition the Supreme Court to hear her religious freedom claim again. The Supreme Court will eventually hear a case about religious freedom and same-sex marriage, but it is doubtful that Ms. Davis case will be the legal test that garners their high level review.

The current case before the Sixth Circuit court is on behalf of five same-sex couples of Rowan County who want their licenses in their own county; and Davis, who wants to be free to refuse them and send them elsewhere. Ultimately, it seems clear that in this case the court could hold for the plaintiffs ordering Davis to do her job, or it could hold for Davis and tell the couples to go elsewhere. Those are the only two options. As presented by her lawyers; the alternative argument is not about doing her job. Kim Davis’s lawyers contend that the real fight is between Davis and Kentucky Governor Steve Beshear who issued the order to the 120 county clerks in Kentucky to start issuing same-sex marriage licenses; he also ordered the state’s Department for Libraries and Archives to prepare a new license document using gender-neutral language. Davis’s application for a stay to the Supreme Court has been ignored. Clearly, the courts are not disputing the governor’s authority. Davis’s lawyers have continued by arguing that Gov. Beshear’s Same Sex Marriage (SSM) mandate is “imposing a direct and severe pressure on her” that …”violates the First Amendment and the Religious Freedom Restoration Act.”

While the Supreme Court may eventually create some exemptions for marriage objectors, it is doubtful that they would intercede to the level of telling the Governor or State General Assembly what laws they should write. There is virtually no precedent for this and would represent a major stretch for the current Supreme Court.

In seeking a religious exemption, Davis’s attorneys compared her to a conscientious objector being forced to go to war. But that analogy hits wide of the target. Unlike a conscientious objector, Davis was not drafted into service against her will. She chose to seek a job whose duties require her to grant licenses in accordance with evolving civil law. This is the action she is no longer willing to do that. Under these conditions she should not expect to keep her job despite being elected to the position. The better analogy is that of a surgeon who is hired to perform all out-patient procedures. Once Roe-v-Wade becomes law, they potentially find themselves in personal or Hippocratic conflict with duties they are potentially asked to perform in their role as a surgeon. Despite religious liberty, no hospital would keep a surgeon on staff that will not perform all surgeries assigned to them. Religious liberty does not entitle the bearer to line-item vetoes of specific job duties or functions. This is one place where working for the Government is similar to the private sector; if you won’t perform the required duties…you are ultimately let go. Obviously, for an elected position the process becomes more complicated. Davis cites her Apostolic Christian faith and its definition of marriage as one man and one woman as the foundation for her actions. While civil marriage and religious marriage have been historically intertwined, they are not the same thing. Clearly, Davis's role as County Clerk is to administer the law, not a sacrament.

If Kim Davis’s argument were valid, then a potential clerk in Dearborn Michigan; which has a large Muslim community could refuse to issue a marriage license to a Christian couple on the grounds that this “kafir” (unbeliever, infidel) couple hasn’t been paying “jizya” (religious tax). Religious minorities in America understand the importance of not empowering religious bigots. In contrast, many fundamentalist organizations like the Liberty Counsel work hard to frame the prose of discrimination as “religious freedom” for the ears of a misguided Christian majority. In fairness to Ms. Davis, Same Sex Marriage was not the law of the land when she ran for office, though at this point she has had ample opportunity to resign if the duties of the position challenge her that much.

The argument framed around the First Amendment to the U.S. Constitution is a card that is often played, but seldom understood by the public. Specifically, the First Amendment says “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” The “establishment of religion” clause means that the government shall not sponsor one religion over another. Considering the challenges in Europe that our founding fathers saw with state sponsored or mandated religion and our own colonies at their beginnings…each entrenched around a particular devotion, this stance is understandable. Many of the concerns seen 300 years ago with government sponsored religion are manifesting themselves again in our modern era. Despite the history, or maybe intentionally ignoring it; there has been a continuing effort to reinterpret the establishment clause to create a sponsorship of Christianity by the courts and government at the expense of all non-Christians. Logically, if this did happen there would ultimately be an argument over favoring one flavor of Christianity over another.

At this time others in the media whirlwind have pointed out the hypocrisy of Kim’s faith versus her 4 marriages. There are lots of verses in the bible about this being “sinful.” Apparently, since she says Jesus has forgiven her, we can ignore that as well. If at first you don’t succeed, try, try, and try again. It is never clear how people chose to pick where to allow forgiveness and where to show intolerance. In truth, my research on Kim Davis indicates she became a devote Christian 4 years ago and has apparently also taken the vows of marriage seriously since that time. In this spirit, there may really be no hypocrisy here despite it being on the agenda of national media.

It would be nice to believe that Kim Davis is standing up for her supposed principles, but she may merely be the naïve dupe of other forces who could be carefully feeding her a script and an encouraging pat on the back. Regardless, when an employee does not perform the duties of their job, they get fired. On the other hand, removing elected officials from their positions is much more complicated and includes time intensive steps through the court system.

It seems clear that unless Ms. Davis repents and starts issuing licenses to Same Sex Couple, she will eventually be found in contempt of court, fined and removed from office; she may even serve some time in jail. After all the aforementioned steps have happened, the real money will start flowing. When this ends she will write a book about her “traumatic” experiences and persecution. The book will likely be a best seller and she will go on a public tour where the honorariums will leave here set for life. It would not be a surprise to learn that her story is already being ghostwritten with a heavy emphasis on her martyr status which is worth millions. Hey, it’s America and this happens all the time.

In the end, this is really about imposing the beliefs and values of some on others. The notion that one religion or lifestyle is better or more sanctified than another is really more a self-serving rationalization. If everyone believes and acts the same as you, you can be more confident and secure that you are doing it "right" and have made the right religious choice. There are plenty who would call this church sponsored discrimination, but the lawyers are trying to frame it otherwise.

I wonder how Kim Davis would react to me. I might fill out a marriage license application in her office listing my religion on the form as “Pastafarianism”. For those of you who are unaware or non-believers in this higher force, this is the Church of the Flying Spaghetti Monster.

Isn’t living in America entertaining….

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