Tuesday, September 08, 2015

Religious Freedom Held Hostage: Jailing Kim Davis was not only a sin―It was a mistake

In all of the debate about gay marriage, no one ever even suggested that anyone who supported it should be put in jail. Now, however, we are incarcerating people for disagreeing with it.

In the case of Kim Davis, the Rowan County Clerk, we have a public official, who, her detractors originally said, should do her job in spite of her religious beliefs or resign. They apparently forgot to mention the option of putting her behind bars.

But all of these demands trample on a number of important considerations.

First, when Kim Davis took her oath to the Kentucky Constitution, that document stated very clearly that marriage was between one man and one woman. Gay marriage was literally not in her job description. In fact, in a sense her job description specifically banned doing this. Some Kentuckians will wonder how they would feel if they were hired for a job and then told that they were to do something not only at odds with their religious convictions, but precisely the opposite of what they were hired to do.

Maybe what the General Assembly should do once they rewrite Kentucky's statutes to bring them in compliance with the Supreme Court's unconstitutional dictate is to have all public officials swear an oath to the new Politically Correct version of the law.

Second, the ACLU-headed lynch mob that went after Davis doesn't seem to appreciate the fact that the right of religious exercise is an enumerated Constitutional right important enough to have been mentioned in the very First Amendment in the Bill of Rights.

You can just imagine the reaction of the authors of the Constitution upon being told that future judges would downgrade this fundamental right in order to accommodate homosexuals wanting to get married―and that the change would be effected, not by the procedure they laid out (the amendment process), but through the usurpation by the High Court of the legislative prerogative.

One wonders what would be the reaction of the ACLU and their friends if the conflict involved in the Davis case involved another right mentioned in the very same sentence of the First Amendment: What if, instead of Davis' right of free religious exercise, it was her right of free speech that was threatened? We all know that the ACLU and its Amen chorus in the media would be holding up Kim Davis as a heroine. But the right of free religious exercise has the same Constitutional status as that of free speech.

Finally, what statute in Kentucky's law books is Kim Davis violating? Kentucky's marriage laws all assume traditional marriage, and will continue to do so until the General Assembly revises the law in the next legislative session.

One of these laws requires that the marriage license be filed in the county "in which the female resides." Any county clerk clerk who issues a license to a male same-sex couple is explicitly violating the law. In other words, the law itself has not been brought into line with the Supreme Court's questionable decision.

If a clerk is asked by two males to give them a marriage license in his county and he issues it, will Judge David Bunning throw him in jail for not following the law?

If Kim Davis is to be put in jail for not following the law as a public official, then (as some conservatives have pointed out) why haven't we also jailed the numerous other public officials who are not following immigration laws?

Was Gavin Newsome, the Lieutenant Governor of California, thrown in jail when he ignored then-current law and issued same-sex marriage licenses in 2004? And why wasn't Eric Holder (or for that matter Barack Obama) put behind bars for deciding in 2011 that it would no longer follow the Defense of Marriage Act, passed by the U. S. Congress in 1996?

Why were the people who are now so insistent on Kim Davis "following the law" so enthusiastic about violating it when doing so favored their own political interests? Why do liberals get to freely defy the rules, but conservatives must always be good little boys and girls and swallow their unconstitutional medicine?

There are some people, not a few of them conservatives, who think that the principle upon which Kim Davis operates is a recipe for anarchy. “What we cannot do," said The American Conservative's Rod Dreher, "and what the government cannot permit, is open defiance of settled law.”

"Settled law"?

"Settled" means you've been there a while. It means you've had time to acclimate yourself to the new situation. It means you're at peace with things. The problem on the same-sex marriage issue is that, although the proponents of same-sex marriage have gutted the Constitution, installed all new legal appliances, and completely redecorated the place, we're only just now moving in.

"Settled law" is what you get when a law has been around a while, when statutory law has had time to bring itself into compliance, and when it has been used as precedent for other laws. Obergefell isn't even close to being "settled law."

But more to the point, as Republican presidential candidate Mike Huckabee pointed out on last Sunday on ABC's This Week with George Stephanopolis, if that is the principle we are to follow, then what can we say about Abraham Lincoln's defiance of the Supreme Court's 1857 Dred Scott decision?

The idea that the only two options are blind compliance with any and every law (even those that violate clear Constitutional protections) or complete anarchy is not only incorrect, it is the falsest of false dichotomies.

The people who articulate the principle that we are to always follow the law, no matter what, have not thought very hard about what that would mean. Do we really think, for example, that public officials in the South should have complied with Jim Crow laws requiring strict racial segregation? These laws were a lot more "settled" than same-sex marriage laws are today. In fact, the civil rights movement is filled with instances of the refusal to follow "settled law."

If we must obey the law in all circumstances then there is no relief from injustice and oppression. We make of every political disease a potential death sentence. Ever injustice threatens to become a fatal political malady.

The Supreme Court, in the process of rewriting the Constitution to bring it into line with with the left-wing attitudes of their fellow culture elites in Obergefell, changed the very definition of a concept that is woven throughout our law, affecting hundreds of thousands of public officials. Can we not expect that there will be people who it has placed in a serious ethical dilemma? Is there no way to accommodate them at all―at least until the statutory law is brought into line?

There are even a few conservative jurists who believe that Judge Bunning did the legally correct thing. Okay. But if they're going to maintain this, they're going to have give a coherent account of why Kim Davis isn't protected by Kentucky's Religious Freedom Protection Act, passed in 2013. Kentucky's RFRA requires that the government not only show that it has a compelling interest in substantially burdening someone's religious freedom, but that it use the least restrictive means of doing so? Judge Bunning ruled (on the basis of a not-very-persuasive argument) that she was not substantially burdened by the requirement to issue license, but he didn't even deal with the second criterion.

Why isn't Judge Bunning following the law?

If Bunning had taken full account of Kentucky's religious freedom law, this issue could have been easily resolved. All Davis asks is that her name not appear on the license. That's it. So why did we push everyone over a political cliff on this?

The reason, of course, is that they wanted to create a scene. Well, they accomplished that purpose. The trouble is that in looking like bullies, they only hurt their cause.

Not only is it wrong to have put Kim Davis in jail, but I think even the supporters of same-sex marriage will rue the day Bunning took this action. "It is worse than a sin," to quote Napoleon: "It is a mistake."

In throwing Kim Davis in jail, Judge Bunning has put a face on the issue of religious discrimination. His order produced a mugshot of Davis now circulating on the Internet. People of faith all over this country have to wonder whether this image is a sign of things to come in a country now ruled by judicial elites unsympathetic to the text of the Constitution itself and now seemingly hostile and punitive toward those with whom they politically disagree.

The same-sex marriage movement's anti-religious freedom crusade will now be seen for what it is: an aggressive and intolerant movement that is willing to jail people for exercising their legitimate Constitutional rights.

Kim Davis will be released from jail. But Judge Bunning's action will live on in infamy.


KyCobb said...


You are lying again, because we already went over this issue concerning females. KRS 402.080 only requires the marriage license be issued in the county a female under the age of 18 resides in. Since neither of two men marrying are females under the age of 18, any county clerk can issue them a marriage license. This statute will only create a problem if two females, both of whom are under the age of 18, apply for a license to marry each other, and I don't imagine there will be a lot of those before the General Assembly amends the law to abolish this anachronistic requirement. Otherwise most of KRS Chapter 402 is gender neutral. KRS 402.005, defining marriage as between one man and one woman, 402.020(1)(d), prohibiting marriage between two people of the same sex, and 402.045, voiding out-of-state same-sex marriages, were voided by Obergefell and are severable from the rest of Chapter 402, which serves perfectly well as a gender neutral statute on marriage.

Jack Westwood said...

KyCobb is correct that KRS 402.080 requires licenses to be issued in the county in which the female resides at the time unless the female is 18 years old or over, or a widow. But he ignores the rest of the law's requirement. It goes on to say that the license must be issued in the county in which the female resides unless the license is issued on HER application in person or by writing signed by her, in which case it may be issued by any county clerk. It seems to me KyCobb's reasoning that since neither of two men marrying are females under the age of 18, any county clerk can issue them a marriage license is is wrong. If a couple wanted to get a license to marry in Kentucky the application must be made by the female member of the couple. here's the KRS: "No marriage shall be solemnized without a license therefor. The license shall be issued by the clerk of the county in which the female resides, unless the female is eighteen (18) years of age or over or a widow, and the license is issued on her application in person or by writing signed by her, in which case it may be issued by any county clerk.

Martin Cothran said...


Jack is right. I originally thought you were correct in your correction on a previous post, but upon looking at the conditions of the statute, I realized that your correction was incorrect. Neither of two males marrying are females under 18 or females over 18 applying in person or by signed document in another county. I realize you have rather exotic views of gender, but here we have a case where gender matters.

KyCobb said...


I see your point, and apologize. However requiring that a female be a party to the license is unconstitutional. Some might argue that this means that no marriage licenses can be issued by any county clerk until the statute is amended to remove the anachronism, but since this would unnecessarily inconvenience everyone who wants to get married, the appropriate course of action is to simply ignore the anachronistic gender requirement until the General Assembly can clean up the language.