Kim Davis is entirely wrong. She is wrong in the Christian sense. She is wrong in the legal sense. She has become a very damaging force in what will become a very meaningful constitutional debate over the course of the next decade. It is because her defiance is so onerous and offensive to current sensibilities that only the most die-hard religious extremists are coming out in support of Davis. She is the wrong person, testing freedom of religious expression in the wrong way, at the wrong time. The fact that she is wrong does not justify the unprecedented and aggressive actions of the rogue justice department in incarcerating her when there is a remedy under state law to address an official’s refusal to perform ministerial tasks.
The backlash against Davis has been fierce, not just from those who were pleased with the June 26, 2015 redefinition of marriage by the US Supreme Court, but also from many Christians who are opposed to same-sex marriage but take the now popular “the Court has ruled and the law is the law” stance. Davis has been attacked on the basis of her failed marriages, her misguided appeals to “God’s Authority” and, yes, even on her appearance.
It is understandable for Christians to turn on Davis. Despite the ridicule one is subjected to if they dare to suggest that Christians or other people of faith are being ‘persecuted’, it is a tough time for mainstream Christians. Many are willingly going through the process of reconciling their personal beliefs with a government that may not always reflect those same standards. Delightfully, many are quickly becoming comfortable with this, and realizing that it is possible to maintain one’s own faith and moral views, despite the laws of the nation contrasting their personal convictions. Even among the faith-based community there are legitimate disputes about how to respond to the ever changing social landscape of this country. It is unfair for any one faith-based group to claim a monopoly on the correct response, or “what Jesus would do“.
In the midst of this turmoil even many practicing Christians are undergoing a bit of a progressive transformation. They don’t want to be the party of bigotry and hate. They want to be known for the message of the unconditional love of Jesus, and a promise of forgiveness for sin. All the while, they forget some of the lessons of unconditional love and understanding of the downtrodden in their rejection of Davis. After all, she is a lost and troubled soul.
It is reasonable, arguably, to expect an elected government official to carry out the ministerial tasks it is charged with, without respect to their personal beliefs. Probably the most commonly stated phrase concerning Kim Davis has been some variant of “she should do her job, or resign”. For the sake of argument, we will assume this position. She is wrong. She should do her job or resign. The consequence of continued refusal could be a state misdemeanor proceeding, or a legislative process to remove her from office.
Only now, Kim Davis has been held in contempt of a federal court order and imprisoned. Wait… What?
Answer this question without regard to the facts of the Kim Davis fiasco: How long has it been the practice of our federal government to imprison state, county or city level officials for their failure, or even outright refusal, to perform a specific duty? If your answer is that she did more than refuse to perform a duty based on a religious objection, she in fact obstructed justice and defied a federal court order, then the question could be stated differently: How long has it been the practice of federal courts to intervene and issue court orders (which provide the grounds for contempt orders) in the ministerial affairs of county governments? This level of federal involvement in local affairs is wildly unprecedented and the implications are broad.
How are we suddenly so selectively outraged at the refusal of a government official to perform one of her duties? Remember, issuing marriage certificates is one of her duties, not “her duty”. She is not the Clerk of Marriages. She is a county clerk responsible for automobile registrations, real property records, lien records, and yes certain certificates including marriage certificates. Since the June, 2015 decision Davis has refused to issue any marriage license, whether to same sex or traditional couples.
When the department of justice acts in an unprecedented way, with a laser focus on very particularized conduct, and enters territory it has previously ignored and attempts to make a resounding statement, we start to see what looks like discrimination based on religious expression. When our government holds a grudge, and vigorously prosecutes some bad acts, but not others, we need to look at what is different about the actors in the acts in question. Let’s do that.
How is Kim Davis different from the ten public officials who acted in defiance of state and federal law while the same sex marriage fight was still being fought? Most of the arguments for these lawbreakers was that they were breaking the law to ‘give’ a right, not to infringe on a right. The lesson from this example being that lawbreaking is OK as long as it protects the actors interpretation of what rights should be protected. What about a county official that infringes upon rights clearly enumerated in the constitution, such as this Orange County California sheriff who continues to manipulate, stall and engage in sophisticated legal wrangling to deprive 2,500 law abiding citizens from obtaining concealed weapons permits despite meeting all legal requirements? Is the lesson here that instead of outright refusal, Davis should have been more cunning in her obstinance? That if you wish to deprive your constituents of their rights, you will not be jailed if you are sophisticated enough to filibuster?
Have we considered the 200 cities, counties and states across the country who boldly refuse to to comply with ICE detainers, or otherwise impede open communication and information exchanges between their employees or officers and federal immigration agents? These localities blatantly obstruct justice, and not in some obscure regulations, but in matters of national security and public safety. Now that the precedent has been set with this lowly small county clerk in Kentucky, should we expect Annise Parker, Ed Lee, Ed Murray and Stephanie Rawlings-Blake to be hauled before district judges sometime in the near future? They are all mayors of crime-ridden cities, and the argument that their blatant refusal to comply with federal law is not depriving anyone of their rights is easily refuted by evidence of the disastrous consequences of not dealing with dangerous criminals when you have them in custody.
Boiled down, the difference between Kim Davis and these high ranking local officials is that Davis was motivated by what she believed to be religious belief, and dared to trespass in the sacred cow of a recent supreme court decision. Meanwhile, the mayors of our major cities defiantly shrug off statutory provisions of the United States Code that are not even controversial. Sheriff Hutchens treads on the literal language of the constitution itself. Neither Hutchens, nor Parker, Lee, Murray, or Rawlings-Blake cite religion in their delinquency.
Davis is an easy target for the insatiable hordes of social justice warriors, salivating over the prospect of their first kill in the Obergfell era. She is uneducated and has a shaky (at best) marital history; she is not aesthetically pleasing and appears to be, at least to some extent, a wackadoodle.
She does not have the right to create her own law, or decide to enforce it according to her own interpretation. God would not expect this of her, and the law does not permit it. There is a process to deal with her, either by impeachment by the state legislature, or misdemeanor charges at the state level. Maybe those steps should be taken to restore order to the universe, but we absolutely must not accept the discriminatory incarceration of a county clerk because the federal court has a score to settle, and deems some laws worthy of enforcement while other equal offenses are ignored.
Liberty comes in strange shapes. Sometimes it even produces a bad result, and as a result, some normal, patriotic and responsible Americans are willing to give up constitutional protections or look the other way at the federal government’s overreach and watch liberty erode. Physical liberty (freedom from imprisonment) is widely considered of the highest order of our individual rights. How quickly and easily we are willing to give up our most basic protections in the bill of rights as long as the cuffs are on the wrist of some wackadoodle.
Not us. We are enlightened, we are moral. Certainly a life-tenured District Judge will never disagree with us.