September 08, 2015

Watcher’s Council Forum On Kim Davis

As I began my sabbatical from blogging last month, I resigned my seat on the Watcher’s Council. As an emeritus member of the group, I do still have the option of participating in the weekly Forum in which the members of the Council and various guests take on a weekly question. This week the topic was Kim Davis and whether she is engaged in bigotry or civil disobedience. My answer is below.

* * *

Simply put, this is not an either/or question.

One can be a bigot or a racist and still engage in civil disobedience can be a despicable human being and still protest against injustice. One can even be wrong about the justice or propriety of a law or policy and still properly engage in civil disobedience by violating that law and accepting one's punishment as a way of seeking to garner support for a change to that which you believe to be unjust.

And that is the key thing that Kim Davis and her supporters are missing here. Crying "civil disobedience" is not a talisman that shields you from punishment or a "get out of jail free" card. As exemplars of civil disobedience like Thoreau, Gandhi and King show us, civil disobedience requires submission to the rule of law as a means of shocking the consciences of others in order to spur change.

But in Kim Davis's case, there is another angle that should be considered. Davis is not acting as a private person here; rather, she is acting in her official capacity to deny the citizenry that which the law and the Constitution require she give them in that capacity -- a legal document granting legal recognition to their marriage. One can strongly argue against the holding in Obergefell (and I do) and still recognize the danger to liberty and the rule of law that her actions represent.

Of particular concern to me is Davis's abuse of the First Amendment to justify her malfeasance in office and defiance of a court order. She claims the right to not only refuse to issue marriage licenses herself, but to also forbid every employee of her office from issuing them. That has the effect of officially establishing her religion as the official religion of Rowan County. And while one might be tempted to cut her slack because of the relative ease with which couple could work around her decree and the troubling nature of the Obergefell decision which created this situation, one has to look at other situations. Would we accept the declaration of a county prosecutor that there will be no prosecutions of spousal rape because she believes that allowing her office to move forward with such cases would violate the Biblical principle that wives must submit to their husbands? Of course not -- the very notion is offensive to anyone with a sense of moral decency, no matter how broadly we interpret the First Amendment's religious liberty guarantee.

So let me be quite clear on this matter -- regardless of the sincerity of her faith (a matter that has no bearing here) Kim Davis belongs in jail until such time as she either agrees to a) issue marriage licenses to all legally eligible couples, b) stand aside and allow her subordinates to do so for her, or c) resigns or is removed from her position and county clerk. If this spurs a change in the national attitude towards gay marriage and results in a reversal of Obergefell, perhaps her short-lived effort to make her faith the established religion of Rowan County will have had some positive impact. Until that time, let her failed claim of privilege serve as a reminder that the rule of law requires we abide by a court order until it expires or is overturned on appeal, even if we believe it is wrong and in violation of our rights.

* * *

I would like to add one more point to what I wrote above. I believe Obergefell was wrongly decided. I believe it should be overturned, either via a further court challenge to the decision (creating an opportunity for SCOTUS to overturn it) or via a constitutional amendment. That said, I believe that Kim Davis has chosen the wrong way to go about resisting the decision, and is the wrong person to make such a challenge. Her actions here damage the case of those who support the traditional definition of marriage in the eyes of the general public, and risks creating additional court decisions that shore up the logic of Obergefell and tear down the logic behind religious accommodations under the law. The simple truth is that in this battle over the authority of the Supreme Court to interpret the Fourteenth Amendment,Kim Davis is not James Meredith -- she is George Wallace. Despite the claims of her supporters, she is not Rosa Parks – she is Rosa Parks’ bus driver. Her actions ought to be rejected by every American who believes in the rule of law.

ADDENDUM: Since I wrote those last words over lunch today, Kim Davis has been released from jail. For all that she and her supporters wish to claim victory, the truth is that Kim Davis lost her battle with Judge Bunning.

And if Kim Davis abides by the new order, she in effect concedes that she was in the wrong last week and that her jailing for contempt was proper.

Personally, I'm hoping the local US Attorney will seek to indict her for violating Title 18, Section 242 of the United States Code, which reads as follows:

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States. . . shall be fined under this title or imprisoned not more than one year, or both....

After all, Davis is clearly guilty of having done precisely that.

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