On Aug 3, 2015, Rowan County Clerk, Kim Davis, was ordered, taken into custody and jailed by U.S. District Court Judge David Bunning. Davis was jailed for her refusal to obey the Court’s earlier order to issue marriage licenses to same-sex couples.
While this case has been a firestorm of controversy from the start, the incarceration of Davis has enraged some people, while others feel she has received exactly what she deserves.
I’m not here to tell you what is right or wrong, though of course I have my own opinion. Rather I am here to lay out the realities of the situation for you. Opinions are cool and all, but if one’s opinion is resistant to the facts, then it just makes that person look an ass.
A note before I go further. I don’t blurt out a non-supported premise at the outset of my presentations. If you want that kind of ignorant crap there are thousands of other commentators who are more than happy to give you that. And it’s easy enough to find one who will say whatever you already believe. However, what I do is lay foundation by exploring the facts of a situation, and then provide rational conclusions that match the facts. If that sort of meaningful commentary is what you’re after, keep reading.
On June 26th, 2015, the United States Supreme Court issued its decision in Obergefell v. Hodges. In its decision, the Court determined that same-sex couples have a fundamental constitutionally protected right to marry. Whether one agrees with the Court is irrelevant.
The Court’s first case was West v Barnes; decided in 1791. West lost. And guess what? You can bet your ass West thought the Court had decided wrongly, as did anyone who agreed with West’s position. And so it has been for the last 224 years – the winners believe the Court made the correct decision, and the losers say the Court made a bad decision. So whether you agree or disagree with the Court in its Obergefell decision, you’re part of a long history of agreeing or disagreeing.
With every Supreme Court decision, there is a segment of society that disapproves. There are certainly decisions with which I disapprove. But how many decisions of the Court are not adhered to today because of that disagreement. That would be zero. Or phrased another way, even though every decision has its detractors, as a nation we adhere to the law when the Court has reached a decision on a statute or a constitutional question. And that will be no less true of Obergefell.
Remember, a lot of southerners were enraged when the Court overruled Plessy v Ferguson with Brown v Board of Education. You may recall that some southerners attempted to physically block black students from entering white schools, even after the Court had stated that segregated schools were unconstitutional.
Some folks were outraged when, in Loving v Virginia, the Court struck down state laws that forbade blacks and white from intermarrying.
As an interesting side note, since same-sex marriage became a hot political topic a few years back, I’ve heard a lot of people say “The government shouldn’t be involved in marriage.” Funny thing is, a lot their grandparents thought having the state control marriage was a great thing, as long as it was used “to keep those dirty niggers from marrying our white women.” Ironic how most people really only want the government out of marriage when the government isn’t doing it the way they want it done. But I’m sure that’s not you.
Obergefell established that same-sex couples have a fundamental constitutionally protected right to marry.
Then comes Kim Davis, the County Clerk of Rowan County, Kentucky. Mrs. Davis takes the position that she is free to violate the fundamental constitutionally protected right to same-sex couples to marry – because of her religious beliefs.
So now we must look at this thing called “religious beliefs”. In truth, there is no such thing. What people call “religious beliefs” are merely their personal opinions. Allow me illustrate this for you in a very practical manner. Let’s begin by looking at the macro issue of religion itself.
Some people’s opinion is that Jesus was the son of God. Other people don’t share that opinion. Some people’s opinion is that the god of the Bible is real. It is the opinion of other people that what those people call “God”, is merely a character in an ancient religious novel. Some people’s opinion is that Muhammad was a prophet of Allah. Other people’s opinion is that he was just a violent jerk. Some people believe Vishnu is real and the god of the Bible is fake. Other people’s opinion is exactly the opposite.
All of these are nothing but personal opinions. Some nut-jobs may claim they can prove their opinion is “real”, but they can’t; they’re nut-jobs.
But let’s narrow the scope of our inquiry down to the claim that the god of the Bible does not want same-sex couples to be married. Some Christians hold that opinion. It is the opinion of other Christians that there is no problem with same-sex couples marrying.
So whether we’re talking about the macro issue of religion generally, or the micro issue of Christian thought on same-sex marriage, we can see that the entire subject – front to back – is simply personal opinion.
Despite claims by people like Davis, there is no greater authority at work here than personal opinion. While I recognize that Davis’ opinion is that her chosen deity has already decided the matter, that perceptive is merely the outcome of her personal opinion. The fact that she is adamant concerning the correctness of her own opinion doesn’t change the basic dynamic or give it any credibility.
Kim Davis has every right to hold whatever opinion of same-sex marriage she desires. Having her own opinions – religious or otherwise – is also a constitutionally protected right.
That said, society does not generally permit one person’s right to cancel out someone else’s right. I have the right to bear arms, but I have no right to use that to cancel out another innocent citizen’s right to “Life” – as in Life, Liberty, and the Pursuit of Happiness. I have the right of free speech, but I don’t have the right to yell fire in a crowded theater when there is no fire. Rational people know this, and understand it.
But Kim Davis is not merely an ordinary citizen going about her private affairs. Mrs. Davis is a government official. The conduct of the public office with which she has been entrusted is entirely separate from her personal opinions. Her actions as county clerk are dictated by statute, not by the opinions or whims of the person who holds the office at the moment. Can you imagine the chaos that would ensue if every government official was allowed to perform or not perform his or her official duties, in whole or in part, based on their personal opinions of what is right and wrong.
Kim Davis has not been summarily penalized for not issuing marriage licenses to same-sex couples. She was sued in a court of law. She answered the suit. The court ruled against her. She appealed. The appellate court ruled against her. She asked the U.S. Supreme Court for an emergency stay. The Court denied her request. In other words, she and those whose fundamental constitutionally protected rights she was denying went through the system as plaintiffs and defendant just like millions of American before them. She lost.
But Kim Davis was not sued in her personal capacity. In other words, she was not sued as just Kim Davis, regular ol’ gal. She was sued in her official capacity. She was sued as “Kim Davis, acting in her official capacity as Rowan County Clerk.”
I’ve already pointed out how insane it would be to allow government employees to do only those parts of their job that they say aren’t in conflict with their personal opinions. There are endless examples of the insanity that would create, but I’ll give you one example. Imagine a government employee refused to give a gun shop the green light to release a firearm to you because as a Quaker he is a pacifist and can’t condone guns in our society or be a part of the process that puts guns in the hands of anyone. The vast majority of you would be demanding he resign, be fired, or hauled before a judge for violating your rights. Funny how that works.
Having lost at every stage in the legal system, Mrs. Davis then came under the order of Judge Bunning, requiring Davis to issue marriage licenses to same-sex couples. I think it is important to remember that Davis hasn’t merely been making a benign decision here. According to now settled law in the U.S., she is a government official denying a certain segment of the population the exercise of their fundamental constitutionally protected rights. That’s what the law is in America, and that is what Bunning’s order is intended to rectify.
Davis had three options: 1) Resign. Since she was being sued in her capacity as Rowan County Clerk, as soon as she resigned the Court would lose jurisdiction over her. 2) Comply with the Court’s order. Or 3) Refuse and be held in contempt, which she knew would be the outcome if she refused.
She chose contempt. Her call. I respect her right to choose that.
So now we come to how contempt works. If failing to obey a court’s order is accidental, or without the intent to disobey the order, it is considered “civil” in nature. Often times the court will do nothing but admonish the party to come into compliance. Sometimes the court will fine a person to make the point that the court will not tolerate its orders being ignored. That’s all “civil contempt”.
When a person knowingly and willfully disregards a court’s order, that is described as being “criminal” in nature. While the court still has the option to fine a person who has committed criminal contempt, the court also has the option of incarcerating the person. The court will choose the option the court feels is necessary to end the contemptuous disregard of the court’s order.
Judge Bunning made it clear when incarcerating Mrs. Davis, that he saw no other means of compeller for her to obey the order. Based on Davis’s public remarks about “acting under God’s authority”, Bunning’s decision seems reasonable to the circumstances Davis created. It also appears to speak to how firmly the Court rejects the idea of government chaos through allowing personal opinion to dictate official conduct.
While it is said that Davis’ detention is “indefinite”, that’s not true on a practical level. She will be released under any of the following circumstances. 1) She agrees to follow the Court’s order. 2) She resigns. Or 3) Her term of office as Country Clerk expires.
There is one other way in which Davis could be released. The Kentucky legislature could impeach her, and then convict her of failure to lawfully perform her official duties. Once she was convicted and removed from office, the Court would lose it’s jurisdiction over Davis and she would be released.
During this Rowan County situation, I’ve noted that a good many Christians seem to define “liberty” as Christians getting their way. That isn’t remotely the definition of liberty. Liberty also does not mean allowing a government official to deny anyone their fundamental constitutionally protected rights simply because the official holds the personal opinion that those people can’t exercise their rights, or disagrees with the Supreme Court that those people have such rights.
I doubt my words here today will alter the views of those who feel Davis is being wronged. I’ve noticed such folks don’t care much for facts or reality. Their view is anchored in their…opinion…and their opinion is all that matters.
I’m glad America also has rational citizens. This article is to provide you with a resource to speak the truth with the facts at your disposal.
Copyright 2015 Dave Champion