Day 5 of the Unnecessary Incarceration of Kim Davis

Ryan Anderson brings some reason and common sense to the discussion about Kim Davis. In today’s New York Times, he writes “We Don’t Need Kim Davis To Be in Jail”:

KIM DAVIS, the clerk in Rowan County, Ky., went to jail last week, and there was no good reason for her to be there. Americans can expect more conflicts over religious conscience and same-sex marriage if we don’t find a way to coexist peacefully. Ms. Davis has become a symbol of what happens when we don’t.

Some on the left say that you must do every aspect of your job, despite your beliefs, or resign. But this has never been the practice in the United States. We have a rich history of accommodating conscientious objectors in a variety of settings, including government employees. Do we really want to say that an otherwise competent employee must quit or go to jail if there is another alternative?

Unfortunately, as we enter day five of the incarceration of Kim Davis, it appears that many Americans are quite willing to see their countrymen jailed over issues of conscience. Anderson shows that it doesn’t have to be this way, and I encourage you to read the rest of his column.

I understand that in many ways, this particular situation isn’t a model case for the cause of religious liberty. Perhaps she could have resigned and avoided all this. But why should she have to do that? Her request not to have her name on marriage licenses doesn’t seem like an unreasonable accommodation. She would have allowed her deputies to issue the licenses had her name been removed from the document. That the governor, the Kentucky legislature, and the Judge couldn’t find a way to get this done is unconscionable to me.

Still, it is a testimony to the velocity of cultural change that so many people find it totally normal and uncontroversial that Davis is in jail indefinitely. The evidence of this change is all around us. One measure of this is the discussion of Kim Davis on “Meet the Press” yesterday morning. It was pushed to the end of the program and lasted only a couple of minutes. The one conservative on the program (Hugh Hewitt) wasn’t allowed to speak on the situation while the other three panelists (Tom Brokaw, Doris Kearns Goodwin, and Joy Ann Reid) expressed no qualms at all that she should be incarcerated. Here is the entire conversation.

CHUCK TODD: A bit of a dramatic week in Kentucky. We had a showdown between a clerk not wanting to issue marriage licenses. She ends up being taken away to jail. Presidential candidates all weighed in. But Doris, I was struck by something else. This is the only place in the country that we’ve had this. Meaning that I think a lot of people thought there would be more clerks that wouldn’t do this.

DORIS KEARNS GOODWIN: I mean, that’s the most important thing to realize, we get so focused on this one person and this one county, but the Supreme Court spoke on a very controversial issue, and all of our country, and other registrars, in other counties, people have gone issuing marriage licenses. And that’s the important thing to understand, that that social movement created an acceptance. Maybe this will have a copycat thing going on after this, but at this point in time, it is accepted by the country. And that’s pretty extraordinary.

TOM BROKAW: I think acceptance of same-sex marriage is so outrunning the opposition that it’s game over, quite honestly. This was an exception down there. I was thinking earlier about what if she had been opposed, for example, to interracial marriage? That’s the law of the land. She took the oath of office, I presume. She swore to uphold the laws of the land. And that meant that if she, and she’s entitled to her opinion and her faith, and what she wants to do, then she ought not to be the county clerk if she can’t–

JOY ANN REID: If I may just say very quickly say that I think the attempts, for her herself, and some people are moving to equate her with the civil rights movement and with Dr. King and Rosa Parks is horrendous. And I think really should be spoken up against.

Bottom line: Todd and Goodwin made sure to point out that Davis is a marginal figure. Brokaw and Reid made sure to highlight a moral equivalence between Davis’s beliefs and racism. And then the conversation was over. That was it. It was as if Davis’s transgression was so self-evident that it didn’t even merit discussion.

Going forward, this is the challenge facing conscientious supporters of traditional marriage. Many of our countrymen hold our views in open contempt and do not believe that they deserve accommodation in public life. They dismiss religious liberty claims as baptized bigotry and then move on to the next subject.

And yet these issues are not going away—not by a long shot. We need to allow reasonable people to hear one another and come to rational accommodations of sincerely held religious beliefs. Whether we will be able to do that remains to be seen. In any case, I’m not giving up that we can do better. The unnecessary incarceration of Kim Davis says that we must.

37 Responses to Day 5 of the Unnecessary Incarceration of Kim Davis

  1. buddyglass September 7, 2015 at 10:24 am #

    To Anderson’s comments:

    What are the criteria that should determine when a religious liberty accommodation is made and when not? Is it just the verbiage in the CRA about “undue hardship”, or would you expand or limit the criteria somehow?

    “She would have allowed her deputies to issue the licenses had her name been removed from the document.”

    If this was the case, why didn’t she do this? The couples that sued her (some of whom were heterosexual) claim their marriage license applications were denied on multiple occasions. Could Davis not have directed one of her deputies to grant them?

    • buddyglass September 7, 2015 at 10:45 am #

      Some good analysis and context here from Eugene Volokh:

      https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/09/04/when-does-your-religion-legally-excuse-you-from-doing-part-of-your-job/

    • Denny Burk September 7, 2015 at 10:48 am #

      Her name is printed on the paper. It’s not just the signature.

      • buddyglass September 7, 2015 at 4:56 pm #

        Yeah, I hadn’t read up on all the facts when I asked that question.

        Ignoring the legal questions for a moment, does the accommodation she sought (ie. not having her name on the documents) really do enough to absolve her of any complicity in the same-sex marriages? After all, she is in charge of the office that grants them. Even if her name isn’t no them, she would be authorizing some deputy to grant them.

        Let’s consider the trusty Christian bakery example. Joe Christian owns Joe’s Bakery and gets a request for a wedding cake for a same-sex wedding reception. If he authorizes his employee Ted, who is not a Christian, to actually make the cake, then ensures it is delivered to the customer without any mention of Joe’s Bakery on the packaging (i.e. his name isn’t on it), and then donates the profits to N.O.M., is he in the clear?

        Or consider the manager of a CVS pharmacy. He doesn’t want to prescribe potentially abortifacient birth control. So he personally opts out of filling those prescriptions, but authorizes his subordinates to fill them. Is that enough? Does it matter that he’s the manager and not one of the subordinates? (Which is also the case for Davis)?

    • Christiane Smith September 7, 2015 at 11:00 am #

      Hi BUDDY,
      perhaps her name had to be on the document as authorizing signature?

      She needs to resign. As her elected office now exists, she can no longer fulfill her duties in good conscience.

      The role of ‘conscience’ is key here. She does have a duty to honor her own conscience. ‘Conscience’ is a private matter between a person and God. Mrs. Davis’s private conscience is keeping her from fulfilling the new requirements of her job.

      Needed: clarification of the word ‘private’ in conjunction with ‘conscience’. This is where I think Mrs. Davis may be conflicted. She needs clarification in this area, which I think is the role of her pastors. Unless, of course, they share her viewpoint. (?)

      • steve hays September 7, 2015 at 3:19 pm #

        I’m unclear on why you say she needs to resign. You seem to pull that duty out of thin air.

        i) Many critics of Kim Davis seem to be unaware of the fact that both public and private employers are required by law (Title 7 Civil Rights Act, state RFRAs) to provide reasonable accommodations to conscientious religious objections.

        ii) Likewise, many critics seems to be unaware of the fact that judicial supremacy is a hotly contested legal theory. It’s not in the Constitution. It’s anti-democratic. It violates the balance of powers.

        By the same token, they seem to be unaware of the fact that judicial review is not in the Constitution. And it, too, is controversial.

        iii) Many of them seem to be unaware of the fact (as you point out) that many states, including Kentucky, have laws banning homosexual marriage. This isn’t just her personal religious crusade.

        • Christiane Smith September 7, 2015 at 4:27 pm #

          Hi STEVE,
          from my perspective, Kim Davis has arrived at a moral decision and is conscience-bound to follow it. That means she has seen a ‘gap’ between ‘right’ and ‘justice’. Letting right be done, in her capacity as a moral person, means that she cannot give ‘justice’ to the same-sex couples, as the law now requires her to do so in her elected position as clerk.

          For this lady, ‘right’ and ‘justice’ cannot both be served in her job, and she has the ‘right’ as she believes it to be according to her private moral conscience.

          That is why I see no alternative for her, at this present time and barring any reasonable and ethical interventions, but to resign.

          There is a great play about the difference between ‘right’ and ‘justice’ from the viewpoint of English law: ‘The Winslow Boy’ and in the play, there is a phrase ‘let right be done’ and a discussion about how ‘right’ and ‘justice’ are not always the same things. A line that I cannot forget is this: ‘easy to do justice, but not always easy to do right’. For me, this has meaning in the situation with Mrs. Davis. She does need to resign, as no one is stepping in to really help her honor her conscience AND maintain justice in her position for those who do not share her convictions. It is sad, but there it is. For now. I wish we were wiser and kinder in this world, but some people have worked very hard on the right AND on the left to maintain division among our American people and it has resulted in harm all around.

          • steve hays September 7, 2015 at 10:32 pm #

            You completely ignore the legal counterexamples I citied.

            • buddyglass September 8, 2015 at 5:22 pm #

              To be fair, one might think she needs to resign not because of the legal situation but because her expressed accommodation (i.e. taking her name off the forms but having her office continue to issue marriage licenses to same-sex couples) doesn’t go far enough. If her conscience requires (or possibly “should” require) that no licenses be issued to same-sex couples through an office that she personally oversees, then the only real option is to resign. Or do what she’s doing, which is sit in jail.

    • Carol Lugg September 8, 2015 at 12:32 am #

      I think something every one forgets, is that the way our government is set up, our Supreme Court cannot write laws, and that is exactly what they have tried to do in this case. They spoke, and everyone jumped to attention, making an assumption that this was now the law of the land. They do not have the power to do this! It is not the law of the land. Kim Davis has every right to refuse to issue “marriage licenses”, just as medical personnel have the right to refuse to perform abortions, based on their consciences.
      There are those that want to make much of Ms. Davis’ past marriages, but even she doesn’t try to duck her past. She admits she made a mess of her life “before” she came into a relationship with Jesus. I, for one, applaud her story. I wish there were more Kim Davis’ around!

  2. Don Johnson September 7, 2015 at 11:16 am #

    The culprit here is the governor and the cost of calling the legislature into session. It is an official form that she objects to, the way to change it is the way it was created, in the legislature. There is also a bit of “not my monkey” going on.

    The judge has 2 ways to enforce compliance, fines and jail, that is all. He thought that fines would not work as people would donate to her cause and she would just pay the fine and continue to be in civil disobedience. Since she was directing all of her subordinates to refuse to work on this area, due to her signature on the form, the judge had to remove her to allow a subordinate to do their job. Of her 6 subordinates, 5 agreed to issue the form. But as she continues in civil disobedience and would re-impose her prohibition on her subordinates, she continues in jail.

  3. James Stanton September 7, 2015 at 12:09 pm #

    Here’s another situation where someone is seeking a religious accommodation. I think it helps to see this issue from other angles.

    http://www.cnn.com/2015/09/05/travel/muslim-flight-attendant-feat/

  4. James Stanton September 7, 2015 at 12:26 pm #

    It’s interesting to see how much perception and feelings matter in this case. Davis’ objection is to having her name and signature affiliated with a marriage license issued to homosexual couples.

    I, for one, can recognize that she would be forced to issue such licenses against her personal beliefs and values. Is there some religious basis for why God should judge her for forced compliance with a secular statute? At what point would Davis (and others in her position) be left with no option but to resign if forced to issue marriage licenses to homosexuals?

  5. James Bradshaw September 7, 2015 at 2:41 pm #

    From a theological perspective, if Kim Davis is going to be held morally culpable by God for issuing a civil marriage license to two men, then anyone who issues a building permit for a non-Christian house of worship is likewise culpable for idolatry and perhaps even heresy or blasphemy.

    Do you folks believe this to be the case?

    Personally, I don’t see the difference between facilitating the worship of “false gods” and facilitating a “false marriage”. I hope someone can clue me in.

    • Christiane Smith September 7, 2015 at 3:55 pm #

      James, it’s not what ‘we think’ at all . . . Kim Davis has resolved to follow her own private conscience.

      (I’m beginning to see that there may be diverse understandings of how ‘conscience’ is interpreted . . . I see it from the viewpoint of my Catholic faith. There may be other viewpoints I am not familiar with that influence the argument, yes, but I am not knowledgeable about those viewpoints on moral ‘conscience’.)

      • steve hays September 7, 2015 at 10:35 pm #

        Well, it’s odd that you say your position represents the Catholic view. Princeton law prof. Robert George, who is Catholic, takes a diametrically different view than you do on SCOTUS:

        http://www.firstthings.com/article/2003/02/lincoln-on-judicial-despotism

        • Christiane Smith September 8, 2015 at 1:00 pm #

          Hi STEVE,
          take another look at my comment . . . you misunderstand what I said . . . I do stand by my comment as my comprehension of ‘moral conscience’ is based on my OWN understanding of my Catholic faith.
          Moral conscience is a deep subject where the ‘laws written on the heart’ by God intersect with our own reasoning and God-given freedom to choose. It is there that many discussions have arisen over where informed moral conscience meets with the freedom to choose the right (or wrong) which is inherent in the dignity of the human person.
          This is sacred territory: the person’s individual conscience.
          The Church can advise, or as the saying goes: ‘the Church can propose, but not impose’ . . . a person’s conscience remains a private sanctuary where the individual meets with God.
          Steve, there is room for diverse opinions within my Church based on the many different great contributions of thought . . . I believe that Dr. George is at least influenced by the writings of Thomas Aquinas.
          What arises in the Church’s diversity of thought over moral conscience is more a matter of emphasis than difference. It is complicated. And interesting. I appreciate your responses. If I have not responded ‘appropriately’ in your eyes, please remember that I speak my own viewpoint. And I hope to understand the viewpoints of others here, so I am sincerely grateful for this opportunity.

          • steve hays September 8, 2015 at 2:29 pm #

            You seem to be privatizing Christianity. If a Christian has a conscientious religious objection, that’s private because conscience is private. Something like that.

            But once again, you begin and end with your pet theory. You disregard our system of gov’t. You disregard her legal rights. You disregard Federalism and the separation of powers.

            • Christiane Smith September 8, 2015 at 3:41 pm #

              Hi STEVE,
              In terms of ‘private’, I speak from this concept:
              “1730 God created man a rational being, conferring on him the dignity of a person who can initiate and control his own actions. “God willed that man should be ‘left in the hand of his own counsel,’ so that he might of his own accord seek his Creator and freely attain his full and blessed perfection by cleaving to him.”26

              Man is rational and therefore like God; he is created with free will and is master over his acts.27”

              Steve, the source is a portion of the Vatican Catechism . . . after reading the comments, perhaps the word ‘personal’ might make more sense to you than the word ‘private’ in the context we are exploring. . .

              The theme of the ‘dignity of the human person’ is a profoundly Catholic belief. I do think it is also a shared belief among many who are not Catholic. It DOES go into areas of ‘choice’ and ‘freedom of choice’, so it may not be totally meaningful to those with backgrounds in certain forms of Calvinism. (?) If you look up the ‘source’, you will find the two references are to Irenaeus and to a well-known encyclical ‘Gaudium et Spes’. The quote from GS does not mention it specifically, but Catholics do believe that God initiates the process whereby a human person comes to him . . . it’s just that in Catholicism, the person comes of his OWN free volition.

              • steve hays September 8, 2015 at 10:14 pm #

                Why do you drag Calvinism into it when I cited an article by a prominent Catholic law prof.? You keep deflecting attention away from from that.

                Fact is, as a civil magistrate who is sworn to uphold both the state constitution and the US constitution, she (along with other civil magistrates) has a duty to resist tyranny.

    • Barbara Jackson September 8, 2015 at 11:07 am #

      Contributing to the building of a temple to another god would be highly problematic for me and not something that I could be a part of myself. Big things or little things. I recently learned that the name of the company that produces some of my favorite exercise videos is a melding of the name of a pagan deity name of “Mother Earth” with “I am” (from the company’s own website under their “about us/investor relations” section) and just tossed every single one of them out of my house because I just cannot, CANNOT have that in my house. It is blasphemy to me. We have to choose what matters most to us. When it came down to my routines and comfort vs God’s holy Name, and when I think that all the Christians in early Rome would have had to do to avoid the lions was to put a little pinch of incense somewhere and says. Few words that they didn’t mean, just to save their lives, but what betrayal it would have been to God and they knew that, Choices get a whole lot clearer.

      • Christiane Smith September 8, 2015 at 12:29 pm #

        Hi BARBARA,
        A lot of our English language is of ‘pagan’ origin. The days of the week: Tuesday, Wednesday, Thursday, and Friday . . . when the Vikings colonized Britain, they brought these Norse gods’ names into the language: Tiu’s Day, Woden’s Day (or Odin’s Day), Thor’s Day, and Freya’s Day.
        We have used these names without realizing the connection and we certainly aren’t thinking or practicing or believing in any ancient Norse ‘gods/goddesses’. We are just using the language as we learnt it as little ones.
        Your purchase and use of the Giam’s products was innocent . . . but when you became alerted to the origin of the company’s name, you were upset by the implication of the name. I think our English language may really be a mine field for you if you understood the derivation of many of our words and phrases.
        You can be at peace, Our Lord is with you and ‘words’ have no power to harm you. His holy peace is a sanctuary of shelter for you from such fears. He takes away our fear.

        • Barbara Jackson September 9, 2015 at 8:06 am #

          There is a difference between pagan origin and explicit pagan use. The name of the company is Gaiam; go see for yourself.

        • Barbara Jackson September 9, 2015 at 8:09 am #

          I will add that it isn’t a question of fear, but of love and reverence for the name of my heavenly Husband.

  6. steve hays September 7, 2015 at 3:14 pm #

    Many gov’t employees are in a position where they might be ordered to do something illegal. Take a supervisor who orders them to destroy incriminating evidence of official misconduct. Or take the IRA targeting conservative groups.

    It’s incumbent on gov’t employees in general to make their own preliminary judgment regarding the legality of orders from higher-ups. If they don’t, they put themselves in legal jeopardy.

    Indeed, subordinates are more likely to play the fall guy than the higher-ups. So it’s in their self-interest, as well as public interest, to ask if the order is lawful or unlawful. They are legally liable if they carry out an illegal order.

    • James Stanton September 7, 2015 at 4:26 pm #

      Steve, I think your second example here is faulty.

      “Many gov’t employees are in a position where they might be ordered to do something illegal. Take a supervisor who orders them to destroy incriminating evidence of official misconduct. Or take the IRA targeting conservative groups.”

      Some conservatives seem to take it as a fact that the IRS (the IRA targeting conservatives would be quite the news story) was targeting conservative groups. The IRS was actually investigating organizations that classified themselves as social welfare groups when their activities were purely political. In doing so they received certain tax benefits.

      The IRS was 100% correct to do so. Were they erred, perhaps, is that more conservatives PACs were scrutinized than liberal groups. That can be considered unfair. It is, however, also true that the IRS investigated liberal groups. This does not get mentioned in the conservative media and conservative talking points.

      • steve hays September 7, 2015 at 10:30 pm #

        You have such an innocent explanation for the IRS. You conveniently ignore how they singled out conservative and/or pro-Israel groups, and did so on the runup to Obama’s reelection, to suppress the vote. Why did Lerner take the Fifth if it was all so innocent and easily explicable?

        • James Stanton September 8, 2015 at 12:01 pm #

          Steve,

          You seem to have your own partisan spin on the facts. Nothing anyone says will convince you otherwise. Have a nice day.

  7. Sandra Stewart September 7, 2015 at 5:57 pm #

    I am not a watcher of Fox news but found this interesting. A panel of lawyers,
    She’s a hypocrite,” criminal defense attorney Sharon Liko agreed. “She’s applying for the job of a martyr. She wants to practice her faith by not issuing marriage licenses. Yet, she will not agree to let the deputy county clerks issue marriage licenses even if it’s okay with their faith.”

    Remember she can get out of jail by agreeing to do the job she swore to do!

    • steve hays September 7, 2015 at 10:40 pm #

      Even if we grant your allegation that Davis is a hypocrite, that’s irrelevant. This issue isn’t primarily or ultimately about Davis. It was going on long before she came on the scene, and it will continue long after her particular situation is settled one way or the other.

      You might as well say the Civil Rights movement was wrong because MLK was a hypocrite, or Indian independence was wrong because Gandhi was a hypocrite, or fighting the Nazis was wrong because FDR was a hypocrite. That’s a red herring. The cause is bigger than any particular individual who happens to represent that cause at any given moment. The rightness of the cause doesn’t derive from a particular spokesman.

    • Frank Franklin September 7, 2015 at 11:33 pm #

      The longer she is in jail the more influential her courage and integrity become. I applaud her civil disobedience and willingness to face the consequences.

  8. Karen McNeal September 7, 2015 at 10:15 pm #

    Instead of asking why doesn’t the KY governor and legislature jump through all sorts of hoops for the benefit of one person, the real question is ‘why doesn’t Kim Davis simply resign?’ That would be a much simpler solution, would allow Kim to answer to ‘God’s authority’ instead of the Constitution and would ensure that gay/lesbian couples are treated equally by government services.

    Since Kim will not fulfill the responsibilities of county clerk, why is she not resigning? Why does she expect the state government to cater to her personal lifestyle?

  9. Ian Shaw September 8, 2015 at 8:27 am #

    I still find it odd that a California AG defied a court ruling to force her to issue concealed carry licenses to applicants and she was not jailed for contempt of court. It’s got to be a 2-way street.

  10. Paul Reed September 8, 2015 at 9:06 am #

    I hope she’s not counting on long-term Christian support. Let’s face it: we have a really short attention span. Consider that the scandal of Planned Parenthood selling baby’s body parts managed to capture our attention for all of 3 weeks, and that was with a carefully designed media outlet regularly feeding us new info. Kim Davis’s elected term is 4 years. I hope she has an exit strategy is all this.

  11. Paul Reed September 8, 2015 at 9:07 am #

    Why?

  12. Don Johnson September 8, 2015 at 1:53 pm #

    She has now been released, with the proviso that she not stop the 5 clerks that have issued licenses to same sex couples continue to do so.

    • Ian Shaw September 8, 2015 at 2:49 pm #

      So she’s still on county payroll then?

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