[Kim Davis](https://en.wikipedia.org/wiki/Kim_Davis_(county_clerk), a county clerk in Kentucky, recently grabbed national headlines because she refused to issue marriage licenses to gay couples, despite the recent Supreme Court ruling that made gay marriage legal throughout the country. She was ordered to grant licenses by a judge, but refused. Since she is an elected official, she cannot be fired, and she has refused to resign. Facing no other obvious option, the judge found her in contempt of court. The judge’s options, from what I gather, were fines or jail. She chose the latter, and as I write this, in jail she sits.
She declared that her refusal was rooted in her religious beliefs, and that combined with her jailing has made her a cause celebre among social conservatives. While the rationally considered magnitude of the gay marriage issue pales in comparison to so many other problems in the country (the gay population is estimated at 1.5%-4% of the overall population), its contentiousness has not ebbed since the Supreme Court “put it to bed” with its Obergefell v Hodges ruling this past June. Social conservatives remain deeply affronted, and conservative blogs and message boards continue to be peppered with expressions of outrage.
I’ve seen a variety of justifications offered on Ms. Davis’s behalf, none of which pass muster. Lets review some of them:
Some compare this to the bakers who were forced to bake a cake for a gay wedding. To this, we must recognize that there is a fundamental and giant difference between government and not-government. Ms. Davis is not a business owner, or a private sector employee. In her role as county clerk, she is an agent of the government. She is not being asked to personally approve of gay marriage, nor to attend one, nor to be friends with the gay couple or invite them into her home or church. She has sworn an oath to carry out the duties of the office.
Here’s the oath:
I, ….., do swear that I will well and truly discharge the duties of the office of ………….. County Circuit Court clerk, according to the best of my skill and judgment, making the due entries and records of all orders, judgments, decrees, opinions and proceedings of the court, and carefully filing and preserving in my office all books and papers which come to my possession by virtue of my office; and that I will not knowingly or willingly commit any malfeasance of office, and will faithfully execute the duties of my office without favor, affection or partiality, so help me God.
“discharge the duties of the office” – She’s gotta issue marriage licenses.
“without favor, affection or partiality” She doesn’t get to choose who gets marriage licenses.
Pretty cut-and-dried. An employee that fails to perform a job would normally face termination, and Ms. Davis is in violation of her oath of office. She can’t be “fired,” because she’s an elected official and has no direct boss. She can, to the best of my knowledge, be impeached and terminated by the state Legislature.
Some have argued that the duties of the office changed since she took the oath, that when she ran for the office, gay marriage wasn’t legal. Apart from the lack of mention of anything like “in effect at the time of my election” in that oath of office, consider what would happen if elected officials weren’t obligated to obey or enforce any laws or rules enacted after they got elected. No changes in legislation or regulation would come into effect until an entire new set of elections – for EVERY elected position – took place. Not exactly the formula for a functioning society, and certainly not the way our society works. Unless otherwise explicitly stated, a law takes effect the moment it’s passed, and agents of the government are obligated to obey that law immediately.
Then there’s the question of her religious freedom, but she remains free to believe and practice as she wishes, and if it violates her conscience to sign gay marriage certificates, she is free to quit her job. She can even devote her efforts to activism, if she’s that passionate about it. Again, lets remember that she is “government,” not “not-government,” and so different rules apply to her work conduct.
Some are revisiting the old tropes used to argue against gay marriage, including some that suggest a slippery slope towards pedophilia and bestiality. This is utter nonsense, and relating homosexuality to pedophilia and bestiality is a blend of ignorance and vile bigotry. But, since I’ve seen it brought up more than once, I’ll address it. First, the legalization of gay marriage didn’t change the legality of gay sex, which was finally resolved in full by the Supreme Court in 2003 in Lawrence v Texas, so it’s not like this slippery slope argument is something newly suggested by the legalizing of gay marriage. Second, gay marriage is a contract entered into by two consenting adults. Children are not adults, therefore they cannot enter into contracts. Children, more importantly, CANNOT consent. Nor can animals for that matter. Slippery-slope arguments are logically fallacious, so they’re typically intended as emotional gambits. This one’s not only stupid, it’s disgusting.
What’s the answer here? Some think the jailing of the clerk is an excessive response, given that (again, to the best of my knowledge), gay couples can simply drive over to the next county to get their licenses. However, accepting Ms. Davis’s actions, or lack thereof, would send a signal that government officials tasked with carrying out specific, cut-and-dried duties could ignore their obligations to do so if they assert moral offense at doing so. We already have enough disrespect for the rule of law at the highest levels of government, we only do ourselves harm if we tolerate it at the lowest.
Ms. Davis seems unlikely to relent any time soon, given the support she’s receiving from the social conservatives. And, I’d imagine that if the judge imposed a fine rather than jail, it would not be particularly effective given that many of those social conservatives would probably send money her way. The Kentucky legislature is going to have to do something. Either they impeach her for failure to carry out her duties, or write law that grants someone else in the clerk’s office the authority to sign those marriage licenses. I believe that the former is the proper course of action, because doing otherwise would simply vindicate lawlessness.
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