The Law and Kim Davis

Well, it’s front-page news now. The September 2 issue of the New York Times carries the headline “Kentucky Clerk Defies Justices on Marriages; Cites God in Refusing Licenses for Gays”. This is the story of Kim Davis, the Rowan County (Kentucky) Clerk who, in defiance of a Federal Court order, refuses to grant marriage licenses to any couple so long as she has to treat same-sex and opposite-sex couples equally with regard to such licenses. This fight has been brewing since the Supreme Court took up the case of Obergefell v. Hodges, wherein it ultimately held that same-sex couples have a Constitutional right to marry. As soon as the decision was announced, right-wing politicians began shouting from the rooftops that those responsible for issuing marriage licenses (county clerks, court clerks, probate judges, etc., depending on the jurisdiction) have the right to refuse to issue marriage licenses to same-sex couples based on the issuers’ religious beliefs. So it’s not surprising that someone would listen to these blowhards and refuse to do their job. And so chaos ensues, which is exactly what we should expect when we tell people that they can obey the laws they like and disregard the ones they don’t, whether for religious reasons or otherwise.
Ms. Davis, the recalcitrant County Clerk, recently said in a statement issued by her lawyers: “To me this has never been a gay or lesbian issue. It’s about marriage and God’s word”. Pure applesauce, as Justice Scalia would say, although I doubt he would approve of me quoting him in this context. This isn’t about religious freedom; it’s about illegally discriminating against same-sex couples, pure and simple. When Ms. Davis was elected to her position as County Clerk, she swore an oath to uphold the Constitution of the United States. According to the Supreme Court, which is the final arbiter of all things Constitutional (see Marbury v. Madison), the Constitution requires that marriage licenses be issued to qualified same-sex couples. In refusing to do so, Ms. Davis is violating her oath, which, given her statements, we can assume was taken with one hand resting on a Bible. And as for her supporters who believe that the concept of “religious freedom” means that a public servant doesn’t have to do anything that might contradict their faith? Hypocrites and opportunists. Let’s suppose that Ms. Davis said that she would no longer issue gun permits or hunting licenses because the Ten Commandments include the admonition “Thou Shalt Not Kill”. Would all these same God-fearing conservatives turn out to protect her religious freedom by defending her right to deny gun enthusiasts their lawful permits? If you believe that, there’ a bridge downtown I’d like to sell you. They only want “religious freedom” exceptions for people whose views they agree with.
But the Supreme Court itself bears some of the responsibility for this imbroglio. When the Court held in the Hobby Lobby v. Burwell case that the Hobby Lobby company could avoid the contraception mandate provision of the Affordable Care Act based on its owners’ “sincerely held religious beliefs”, it helped to pry open this can of worms wherein people believe they can maneuver around laws they don’t like based on their faith. This is a supremely bad idea (pun intended). Americans hold many differing religious beliefs, but the law is based on certainty, and must be applied equally to everyone. Sheer anarchy would result if people were allowed to pick and choose which laws to obey based on something as ephemeral and contentious as religious beliefs, which vary widely from person to person. Through our recent history, political conservatives have passionately appealed for “law and order”, especially when people they don’t like are protesting for a cause conservatives don’t believe in. But to have any true meaning, “law and order” must apply to everyone equally, including Kim Davis.


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