Kentucky clerk Kim Davis remains in jail, citing religious beliefs

Kentucky clerk Kim Davis remains in jail, citing religious beliefs

With regard to upholding the rule of law in the Kim Davis contempt case, the legal question is this: Does the law allow a state elected official to be jailed for contempt for failing to follow a federal order when following the order may infringe upon her sincerely held beliefs?

Kim Davis, Carter County Detention Center
Kim Davis, Carter County Detention Center

Kim Davis, a publicly elected state official, has been jailed over her refusal to act against a sincerely held belief. Beliefs, or religious faith, are generally given much or at least some weight in considering whether a person is burdened unfairly by the contemplated action she has been ordered to undertake. In this case, the federal judge has decided that the belief is to be given no weight, or that her faith has not been unfairly burdened by ordering her to issue marriage licenses that include her name. He ordered her into the custody of the U.S. Marshal because she would not issue marriage licenses to gay couples.

Kim Davis stopped issuing any marriage licenses in June 2015 following the Supreme Court ruling in the Obergefell case, which approved a right to same sex marriage. So she has not been discriminatory in her action. However she may have run afoul of her objective duties as determined by the state of Kentucky.

This case is very interesting in the chosen strategy of attack. A filing in federal court, not the state, initiated the case. The claim is presumably that a state government official is acting in contravention of federal law – a violation of a constitutional right. But the right itself – the brand new right to same sex marriage has barely the gotten the training wheels off, and Judge Bunning, to whom this case has been brought just happens to have a very clear record of support for gay rights. Further, the constitutional right is one that has been interpreted into the Constitution – it is supposedly implicit, but certainly not explicit. The right to any “marriage” per se is not included in the Constitution, and traditionally has been regulated by the state, not the federal government.

Further, the interplay between state and federal law in these types of disputes is complex. Earlier this year, Alabama judges were ordered to issue marriage licenses to same sex couples by the federal district court, but the orders arguably only related to the actual named people. Here, it appears that the couple that brought the original suit against Davis are lesbians. They did get their licenses on Friday, but at least three other gay couples also benefitted from the judge’s order. (The judge has conceded that the licenses may not be valid, but that issue has been left for another day). Any distinction here may be moot since Obergefell has come out.

Davis has stated that if her name is removed from the licenses she will issue them, but that would take the legislature returning to session early to make the new law. It appears that almost half of the county clerks in Kentucky would support this, but the governor is not willing to call them into special session to do this. Davis being an elected official cannot be fired. Legislative action would be needed in order to remove her from her job which would also take time.

Either of those options would have been a much better solution to this problem, particularly when the judge isn’t sure the license will even be valid in this situation. Working through the system in a legislatively accepted way would not have been more of a burden on any party and certainly not an irreparable one. Instead, a county clerk has been thrown in jail not for being a danger to society or threatening to run off with county money, but for acting in accordance with her religion. Anyone who likes this result is failing to see the precedent that has been set. Because you work for the government should not mean that you have to put aside your beliefs or be jailed. There are legitimate compromises that people with some forethought and sensitivity could have put into place. Instead, we continue to get more social justice shoved down our throats.

A finding of contempt, coupled with detention, is widely understood to be a condition imposed until the person complies with the order. If a person is simply unwilling to comply, this action might make sense. In a case like this, where the person is unable to comply – and her conscience must be respected whatever you think of her – she actually does not have “the keys to the jail.” In order to free herself she believes she would have to go against her faith. That is the opposite of religious freedom.

Those involved say all they wanted was for her to be fined or to quit.

Yates, who received the marriage license with Smith on Friday, said he, too, was shocked by Davis’ jailing. “That’s not what everyone was hoping for,” Yates said, adding that same-sex marriage supporters were instead hoping Davis would be fined or that she would resign.

This is the clearest statement of what they want – punishment. Not accommodation – punishment. Notice that there is no mention of mutual respect or understanding. They don’t want to be part of a compassionate society, they just want to stomp.

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