Thursday, September 03, 2015

What some people aren't getting about Kim Davis' rights

I posted this in the comments section of Rod Dreher's blog at the American Conservative today. Rod seems to be viscerally supportive of the now jailed Kim Davis, but has questions about whether she is in the right here. I have noticed this on other conservative blogs too.

The problem is that there are factors Rod and the others are not taking into account, mostly because they don't know about them:


I think you are not taking several thing into account here.
First, the state constitution to which Davis swore an oath stated very explicitly that marriage was between one man and one woman. Therefore, technically speaking, she would be violating her oath to issue a marriage license to a same-sex couple. 
Second, Davis' refusal to issue a license does not prevent anyone from getting married. They can simply go to the next county down the road. In Kentucky this is easy, since there are 120 counties. The couple that brought the suite claimed that that was burdensome, but it wasn't burdensome for them to go to another county to file their suit. 
Thirdly, Kentucky just passed a Religious Freedom Restoration Act two years ago that requires the government a) to prove that the government has a compelling interest in burdening someone's religious freedom, but b) that they have to use the least restrictive means in doing so. The judge in this case has ignored that law. 
Fourthly, all four legislative leaders here in Kentucky agree that this issue can be easily resolved by updating marriage laws that are out of date anyway, but the governor refuses either to call a special session to deal with it or to issue an executive order relieving Davis of this (arguable) obligation. All he has to do is sign an executive order and everyone gets what they want. But he has, by his inaction, precipitated this crisis. 
Finally, this is not an issue of civil disobedience. For one thing, we are talking about a public official, who is, by virtue of being one, part of government itself who claims that she IS following the law. For another, it is not civil disobedience to claim refuge in the Constitution to protect yourself against a misinterpretation of it. You may not agree with that practice, but it is not rise to the level of civil disobedience. You are not refusing to follow the law, but only denying that the "law" you are being asked to follow is really the "law." That is something very different.
Read more here.


Singring said...

Here's a Professor from Georgetown responding to similar hogwash spouted by Ted Cruz today:

"“It’s ridiculous,” said David Vladeck, a professor of law at Georgetown. “The Supreme Court says the Fourteenth Amendment requires states to issue licenses .… That is the law of the land. We have something in the Constitution called the Supremacy Clause,” which states that the Constitution is the ultimate authority in the U.S.

One argument here is that the ruling only applies to the Sixth Circuit, as that’s where the case the justices decided originated. That might hold true if it was a statutory, rather than constitutional ruling, Vladeck said—but it wasn’t. “Ted Cruz ought to know that. I knew Ted Cruz before he became the new Ted Cruz, and he was an able lawyer,” Vladeck said. “My guess is this is just political posturing of the worst kind.”"

Just like Ted Cruz, you ought to know better Martin.

Martin Cothran said...

Wait, are you arguing that the requirement that a state issue licenses necessitates that a county clerk do it?

Maybe you can unpack your reasoning for us.

Singring said...

You should have your short term memory checked. In your own comment to Rob that you posted above tout claim that Ms Davis is only bound to the state constitution. Vladeck points out that the federal law supercedes state law in this case.

Martin Cothran said...

You should have your eyes checked. I NEVER said that Davis is "only bound to the state constitution." I said it would have violated her oath to the state constitution. For that matter it would have violated her oath to upholding any laws, including federal ones, since she took an oath to uphold those too at a time when federal law was on the other side of the marriage issue.

So what was your argument that the requirement that states issues marriage licences necessitates that clerks do it again?

KyCobb said...


"So what was your argument that the requirement that states issues marriage licences necessitates that clerks do it again?"

Because that is what the law requires. I find it very funny that every time the President issues an executive order the Right screams "tyrant!" But now you are demanding the Governor re-write the law through an executive order.

Singring said...

"So what was your argument that the requirement that states issues marriage licences necessitates that clerks do it again?"

I really can't tell if you are just spouting gibberish at this point for the sake of it or if you actually think you are on to a winning point here...

Imagine the following: all country clerks across the state of Kentucky decide not to issue any marriage licenses to interracial couples tomorrow. According to your logic, each individual clerk could claim some 'religious exemption' and then push the buck saying:' well, why don't you just go to the next county?' - where the clerk would say the same thing. Effectively, it would be impossible to get a marriage license as in interracial couple in Kentucky. According to you, that would be just fine - according to the constitution and the supreme court, it would be in direct contradiction to the 14th Amendment.

What you are essentially advocating for here is anarchy. Not exactly what I would expect from a Kentucky Catholic Conservative, but I'm not really surprised by anything here anymore.

Imagine a county in which the fire department says they will no longer respond to calls originating from addresses with a '13' in them, because of a deeply held religious belief that it is an unlucky number...according to you, that'd be just fine.

entirelyuseless said...

"What you are essentially advocating for here is anarchy."

So you believe that if every person always does what he believes is right, even when that contradicts the law, that would be anarchy?

Pretty much everyone thinks that murder is wrong. Almost everyone thinks that stealing is wrong. And so on.

If everyone did what he believed right, whether or not it happened to coincide with the law, that would not be anarchy. That would be a vast improvement over the present situation, where people frequently do things they believe to be wrong.

Singring said...

"If everyone did what he believed right, whether or not it happened to coincide with the law, that would not be anarchy. "

Actually, what you are describing is exactly what anarchy would look like.

The Oxford Dictionary definition is:

"A state of disorder due to absence or non-recognition of authority or other controlling systems"