Kim Davis, the elected county clerk of Rowan County, Kentucky is sitting in a jail in Ashland, Kentucky tonight. She is in jail after being held in contempt of court by a U.S. district court judge for refusing to issue marriage licenses. The thrice-married Davis has been refusing all applicants (gay and straight) since the Supreme Court ruled in June that no state could prohibit two people of the same sex from marrying.
Davis says she cannot issue marriage licenses to gays and lesbians because gay marriage contradicts her sincerely held religious beliefs, i.e. her freedom of religion. She is an apostolic Christian and she believes that marriage can only be between a man and a woman. Five of her six deputies who were also called to the hearing have seen the light and plan to issue marriage licenses starting tomorrow. The other deputy, curiously Davis’s son, is not in jail.
Unsurprisingly this is national news. Both sides have been hanging outside the courthouse yipping it up at each other. To most Republicans it’s pretty cut and dry stuff. They have been promoting freedom of religion for a while as a way to selectively circumvent the law. Unfortunately for Davis, her case went all the way to the U.S. Supreme Court, which ruled that she must follow the law. Davis meanwhile seems to be suffering from a case of cognitive dissonance, unable to reconcile her oath to uniformly execute the law with her religious beliefs. It looks like God is winning, at least for the moment. It remains unclear if she will see the secular light, linger indefinitely in jail as a cause celebre or do the honorable thing for someone in these cases: resign.
Republicans definitely seem energized by this “freedom of religion equals freedom to discriminate” argument. This is hardly surprising but it certainly is curious. An oath is a solemn secular promise, and Davis swore it when she entered her elective office that pays a comfortable $80,000 a year (great money in rural Kentucky). An oath is a requirement of being in the civil service. I ought to know because for thirty-two years I was a federal civil servant. When our careers began we all raised our hand and swore the same oath: that we would faithfully serve the constitution of the United States. (Curiously I had to end it with “So help me God,” although I was an agnostic.) Davis is not a federal civil servant, but it’s likely that her oath contained similar words.
While I was a civil servant, upholding the oath was not just the law and a good idea, not following the oath was grounds for my dismissal and/or possible other criminal penalties. In 32 years I served five presidents from Jimmy Carter (very briefly) to Barack Obama. The presidents I served frequently wrote stupid executive orders, and some of them were deeply offensive to me. Congress wasn’t much better with the laws it was passing. For much of that time I was a Unitarian Universalist. Although its adherents have no creed to profess, lots of stuff I had to do contradicted my religious beliefs. The first part of my career was with the Department of Defense. I aided in the printing of maps and charts used to direct our armed forces, sometimes to kill people. As part of holding a security clearance I could not disclose things that I knew. To this day I still can’t, and some of the stuff I learned shook me to the core and was both personally offensive and violated my religious beliefs. To get a security clearance in the first place I had to swear I wasn’t a homosexual. (This fortunately has changed.)
While working at a more benign department, Health and Human Services, I had to sometimes provide support to the office that promoted President Bush’s faith-based initiatives. This was pretty obvious to me a violation of the boundaries between church and state, but I shut up about it while expressing my opinions freely outside the office. I didn’t like it, but Bush had been constitutionally elected and if it was unconstitutional, it was an issue for the courts. So like Kim Davis, there were many aspects to my job that rubbed me the wrong way. I knew if it became too much to bear that there was an alternative: resign and find a job without these conflicts. Davis has that option right now. All she has to do is use it and she gets a get out of jail free card, quite literally.
Oaths are there for a very good reason: government can’t run if civil servants can selectively decide which parts of the law they will follow or ignore: laws can become toothless if they are not uniform. These same Republicans who are gung ho supporting Davis’s religious rights would not for a moment allow it from a soldier who refused to fight. “It’s against the commandments to kill, sergeant. Sorry, I’ll opt out of this battle. Maybe the next one if it’s not lethal.” It won’t work for the food inspector with a sincere religious belief against GMOs. It won’t work for the judge who refuses to give a mandatory sentence. Our constitution says that the Supreme Court gets to decide what is constitutional, the court decided it about gay marriage and it conflicted with her religious beliefs. The constitutional approach if she doesn’t like their decision is to push for a constitutional amendment prohibiting same sex marriage.
Instead, Davis’s response was to deny all who came to her the right to marry. In doing so she violated couples’ civil right to marriage and all the benefits that come with marriage. Her “right” to freedom of religion effectively trumped the rights of lots of others and put others through unnecessary hassle, expense and emotional trauma.
It should be obvious that any right that restricts someone else’s rights is not a real right. But that’s essentially the argument she and Republicans are making, and in her case she is doing while executing the law. If all civil servants had the right to rewrite or sidestep laws they don’t agree with while retaining their position, government would be mostly dysfunctional.
Republicans basically want anarchy anyhow, so maybe that’s why they are cheering her on. They are cheering anyone who will push policies that they agree with, legally or illegally. It’s affecting the ends they want that matter, and most are not principled enough to see this is both illegal and wrong. This variant on the freedom of religion ruse is just one more.
Fortunately, at least U.S. District Judge David Bunning gets it. A fine would not be enough here. Right-wingers would simply set up a fund that would allow her to flaunt the law indefinitely. So I feel no pity for her whatsoever. If her convictions are as sincere as she claims, the honorable thing to do is to resign. Otherwise, she should follow the rule of law for her public position that she swore to uphold and for which she is paid to uphold. Or she can choose to rot in jail on principle, which is fine with me.
Update 9/4/15 – Clarified post to note that Davis’s son has not been jailed.