You Don’t Have to Like Same-Sex Marriage to Realize Kim Davis Ignored the Rule of Law
Apparently, the most pressing issue in the country is a Kentucky county clerk who refuses to separate her religious beliefs from her duties as a public official. The media frenzy has created a debate over the role of religion in public affairs in the wake of the Supreme Court’s ruling in Obergefell v. Hodges.
Kim Davis was elected as a Democrat to serve as the clerk of Rowan County, Kentucky in November 2014. She succeeded her mother, Jean Bailey, who served in the role for 37 years. Davis worked under her mother as a deputy clerk for 24 years.
Near the end of Bailey’s tenure, her office was the subject of complaints. Davis pulled in more than $63,000 in compensation. The excessive government salaries in the county of approximately 23,600 residents led to a reduction in the office’s budget in December 2011.
When Davis took the oath of office, she pledged that she would “support the Constitution of the United States and the Constitution of this Commonwealth.” When she entered office in January, same-sex marriage was constitutionally prohibited in Kentucky, but that changed in June when the Supreme Court struck down state constitutional amendments and statutes prohibiting it.
Governor Steve Beshear, D-Ky., instructed county clerks to comply with the ruling by issuing marriage certificates to same-sex couples. “Neither your oath nor the Supreme Court dictates what you must believe,” Beshear explained. “But as elected officials, they do prescribe how we must act.”
Davis, citing her religious beliefs, refused to issue marriage licenses to any couple, traditional or same-sex, in Rowan County and ordered her staff to follow suit. In mid August, U.S. District Court Judge David Bunning, the son of former Republican U.S. Senator Jim Bunning, issued an injunction against Davis ordering her to issue marriage licenses in accordance with the Supreme Court’s ruling in Obergfell.
Just days later, Davis appealed to the Sixth Circuit Court of Appeals, which, prior to Obergfell, was one of the few courts in the United States that upheld the constitutionality of same-sex marriage bans. A three-judge panel denied her appeal.
She asked the Supreme Court to take her case, but she was again rebuffed.
In the injunction issued against Davis, Bunning wrote that “[o]ur form of government will not survive unless we, as a society, agree to respect the U.S. Supreme Court’s decisions, regardless of our personal opinions. Davis is certainly free to disagree with the Court’s opinion, as many Americans likely do, but that does not excuse her from complying with it.”
“To hold otherwise,” he added, “would set a dangerous precedent.”
The case isn’t about religious liberty; it’s about the rule of law. Certainly, one can disagree with the Supreme Court rulings. Simply because five judges in black robes rule on an issue doesn’t necessarily mean that the subject can’t be revisited through appropriate legislation within the confines of a judicial ruling.
But as Judge Andrew Napolitano explained on Tuesday, “There is no acceptable dispute to the truism that the Supreme Court has the final say on the meaning of the Constitution, whether you agree with it or not.”
“[Davis’ attorney is] asking for an accommodation between her religious beliefs and the fundamental right of same sex couples to get married in that county, they found the accommodation, she doesn’t have to deal with them, and the deputy clerks can issue those applications,” said Napolitano. “But if he wants to relitigate the issue of whether or not a local county clerk can defy the Supreme Court, he is going to lose and she is going to lose. That issue has already been resolved with finality.”
Still, despite losing at every turn, Davis refused to perform her duties. She refused to uphold the rule of law. Davis and her attorney insisted that she was acting on “God’s authority,” which, since the United States isn’t a theocracy, isn’t recognized.
Bunning found Davis in contempt on September 3 and ordered her into custody. Her staff subsequently resumed issuing marriage licenses to traditional and same-sex couples. Those who initiated the suit against Davis asked for fines, but Bunning believed that Davis’ supporters would pay the fines for her, rendering that form of sanctions irrelevant.
Republican presidential candidates, desperate for the limelight, have rallied behind Davis. Former Governor Mike Huckabee, R-Ark., and Sen. Ted Cruz, R-Texas, have been the most vocal. Huckabee said the jailing of Davis for contempt is an example of the “criminalization of Christianity.” Huckabee offered to take Davis’ place in jail should she be required to go back for further ignoring the law. Cruz claimed that Bunning’s action against Davis was “judicial tyranny.”
“Those who are persecuting Kim Davis believe that Christians should not serve in public office. That is the consequence of their position,” said Cruz. “Or, if Christians do serve in public office, they must disregard their religious faith–or be sent to jail.”
The public comments of presidential candidates are little more than hot air in the conversation in a desperate attempt to gain attention when all the wind in the room is being consumed by Donald Trump, who, as it happens, doesn’t agree with Davis. As an example of how desperate these guys are, one of Huckabee’s aides physically blocked Cruz from appearing on stage with Davis and Huckabee when she was released on Tuesday.
No one disagrees that people are free to observe their religion peacefully in their private lives. But if someone, like Davis, holds a public office and is willfully using their religious beliefs position to ignore the rule of law, they deserve some form of punishment.
Perhaps the Kentucky General Assembly will offer Davis some means to avoid having to sign off on marriage certificates for same-sex couples, but, until state lawmakers act, Davis has no choice but to follow the law or face some form of punishment until she complies with the law or resigns from office.