Kim Davis jailed (finally)

[Mikee]

Kim Davis Ordered Jailed in Kentucky Gay Marriage Dispute

My question is why couldn't they just have fired her for not doing her job? Why does this stupid person get to get in front of the Supreme Court? She took an oath to uphold the constitution, she violates that oath she's fired with no benefits. I hope she gets jail time and no pension.

[Selene]

Kim Davis Ordered Jailed in Kentucky Gay Marriage Dispute

My question is why couldn't they just have fired her for not doing her job? Why does this stupid person get to get in front of the Supreme Court? She took an oath to uphold the constitution, she violates that oath she's fired with no benefits. I hope she gets some serious jail time and no pension.

First, it is a Federal District Court...

She is a publicly elected Democrat to a County Clerk position which is a State issue.

She has a legitimate argument and she has a First Amendment protection to freely practice her religion.

Now the question I would like answered is:

Are there other deputy clerks who can issue these licenses?

A...

Post Script:

I find it sadly suspicious when "Objectivists," "Libertarians" and other pro liberty folks take glee in seeing the State punish an individual citizen for refusing to act based upon a conscientious moral objection.

[Mikee]

She took an oath to uphold the constitution. If she has any reason she cannot keep that oath she should resign her position, elected or not. That would be the ethical action she should take. She essentially was lying when she swore to uphold the duties of her office. Her moral objection is moot if she doesn't resign in the face of her self imposed contradiction. She is obstructing justice.

[Selene]

She took an oath to uphold the constitution. If she has any reason she cannot keep that oath she should resign her position, elected or not. That would be the ethical action she should take. She essentially was lying when she swore to uphold the duties of her office. Her moral objection is moot if she doesn't resign in the face of her self imposed contradiction. She is obstructing justice. [edited]

I see.

Here are some facts which you may be unaware of...

In her lawsuit, filed Tuesday in U.S. District Court, Davis blamed Beshear for instructing the state's 120 county clerks to comply with the U.S. Supreme Court decision in June striking down Kentucky's same-sex marriage ban and legalizing gay marriage nationwide.

Beshear should have let Davis and other clerks opt out if they felt morally uncomfortable providing licenses to same-sex couples, she said. By telling the clerks to obey the Supreme Court, he made them vulnerable to being sued, as she herself was sued by groups of her constituents demanding same-sex and opposite-sex marriage licenses, she said.

"The Commonwealth of Kentucky, acting through Governor Beshear, has deprived Davis of her religious-conscience rights guaranteed by the United States and Kentucky constitutions and laws, by insisting that Davis issue marriage licenses to same-sex couples contrary to her conscience, based on her sincerely held religious beliefs," Davis said in the suit.

Attorney General Jack Conway cited his own moral beliefs last year when he refused to defend the state's gay-marriage ban in the federal appeals courts, without being criticized by Beshear, Davis said. Instead, Beshear hired private attorneys to replace Conway.

Davis seeks protection under the state's religious-freedom law, passed by the General Assembly in 2013 over Beshear's veto. The law protects "sincerely held religious beliefs" from infringement unless there is "a compelling governmental interest." Because her oath of office included the phrase "so help me God," Davis said, she believed she never would have to "act in contradiction to the moral law of God."

Read more here: http://www.kentucky.com/2015/08/05/3975031_rowan-clerk-sues-kentucky-governor.html?rh=1#storylink=cpy

Additionally, here is the Oath all County Clerk's in Kentucky swear to...

Members of the General Assembly and all officers, before they enter upon the execution of the duties of their respective offices, and all members of the bar, before they enter upon the practice of their profession, shall take the following oath or affirmation: I do solemnly swear (or affirm, as the case may be) that I will support the Constitution of the United States and the Constitution of this Commonwealth, and be faithful and true to the Commonwealth of Kentucky so long as I continue a citizen thereof, and that I will faithfully execute, to the best of my ability, the office of .... according to law; and I do further solemnly swear (or affirm) that since the adoption of the present Constitution, I, being a citizen of this State, have not fought a duel with deadly weapons within this State nor out of it, nor have I sent or accepted a challenge to fight a duel with deadly weapons, nor have I acted as second in carrying a challenge, nor aided or assisted any person thus offending, so help me God.

Text as Ratified on: August 3, 1891, and revised September 28, 1891.

History: Not yet amended. http://www.lrc.ky.gov/Legresou/Constitu/228.htm

The seminal foundational decision on contempt arose from the 1911 Bucks Stove case involving Gompers...

https://scholar.google.ca/scholar_case?case=17005237606082449586&q=116+f.+3d+952&hl=en&as_sdt=2006

A...

[Brant Gaede]

The real problem is the government issuing any marriage licenses at all. The most I could go along with is the recording of notarized documents privately generated stating so and so are now married to each other.

You could even record a document stating you were married to a tree or a rock or a dog.

Who records? Why a government agency? Why not a private agency created for that purpose?

--Brant

anyway, this will all blow over and the clerks will all bow down or somehow sidestep the matter or get run over

"the moral law of God," btw, is an irrational position because "God" is--what?--ineffable and unknowable except for His priestly minions so revealed in ancient writings in Greek and Latin (making a nice monopoly for The Church of Rome)?

[Peter]

Thanks to Adam for doing our homework for us.

I don’t find fault with her. She came first, before the new law. Her boss should have given same sex marriage license handling to another clerk who would do it. In the future I would hire people who would sign all licenses as prescribed by law.

What did Daisy the Cow say to Ferdinand the Bull? I am not in the mooed.

[william.scherk]

I find it sadly suspicious when "Objectivists," "Libertarians" and other pro liberty folks take glee in seeing the State punish an individual citizen for refusing to act based upon a conscientious moral objection.

I don't see any glee (rather I see anger and disgust). The lady wants to impose her religious beliefs on the job. Her job is a secular affair in this case -- clerking -- attesting that the legal requirements for marriage have been met, and issuing the license to which applicants are entitled.

Was a time when county clerks refused to issue marriage licenses to mixed-race couples -- in the years after Loving v Virginia was decided.

She took an oath to uphold the constitution. If she has any reason she cannot keep that oath she should resign her position, elected or not. That would be the ethical action she should take.

She has been ill-served by the religious wack-jobs on her legal team. They instructed her that she could refuse to issue any licenses, to same-sex and opposite-sex couples.

Here is Kim Davis's justification, as recorded in a radio interview from federal custody: “I would have to either make a decision to stand or I would have to buckle down and leave. ... And if I left, resigned or chose to retire, I would have no voice for God’s word"

Whisky Tango Foxtrot. If she resigned, she would lose her voice for God? She would lose her $80k per annum salary. She wants to be the Voice for God in Rowan County? Well, start a fucking church, lady.

I think the stupidest comment I have heard was from Rand Paul a couple of days ago (though a couple of other prominent politicians come close):

“You know I think one way to get around the whole idea of what the Supreme Court is forcing on the states is for states to just get out of the business of giving out licenses. Alabama has already voted to do this…anybody can make a contract and then if you want a marriage contract you go to a church."

-- that's right, gay couples, if you want a marriage contract, go to a church. What a zonard is Paul.

As for any arguments about getting the state/county out of the business of marriage registration or licensing, great. That's something that can be done, perhaps. But in the meantime, the law of the land is clear -- same-sex couples have the constitutional right to marriage, and in Rowan County, a clerk has refused to do the job of providing that legal service to those who are entitled to it.

I can't make sense of Adam's quotes. Kim Davis has no real ground to stand on -- she has refused to obey a court order. She is thus in contempt -- until she at least accepts and allows that her deputies can issue marriage licenses in her stead.

When she was offered that accommodation -- allowing a deputy to perform the duties of the office, she refused. If she had not refused, she would be free.

Peter Taylor is poorly informed. Davis had ordered all her staff to refrain from issuing licenses. She forced her religious views on her office. Her boss, the governor of Kentucky, ordered her and all other clerks to issue marriage licenses according to the law. She ignored that instruction and is likely to be indicted for that refusal in the days to come.

So, tomorrow in Morehead, Kentucky, folks can get married as they are legally entitled, gays and straights. Kim Davis is going to sit that out, as is her choice, however stupid and pointless that choice seems to be legally and morally.

She has the key to her cell. Nobody else.

Edited September 3, 2015 by william.scherk

[Brant Gaede]

Oh, I think she knew where this was going and is going and it's what she wants--a lot of publicity for her own la causa and her idea of probity. She now a celebrity. She wanted to make a moral statement and she did and it's that statement that deserves analysis, not the minor legal questions, previously resolved btw. Why can't a guy marry a guy or a gal a gal? It violates American "culture"? God?

--Brant

why can't the irrational marry the irrational or the rational the rational or the irrational marry the rational or the -- ? (my concentration broke up here, preceded by my rationality)

[Mikee]

As far as Kim Davis rights regarding her moral convictions: she represents the law of the land and the coercion that comes with it. She is essentially imposing her religious beliefs on others by force, basically her own little bit of Sharia. Particularly in today's world and the fact there is a religious war going on which may reach our shores I think we need to be very aware of all of the ramifications of this issue. Her religious convictions mean nothing in this case except that she is violating them if she does not resign her job given the contradiction between the law she has taken an oath to uphold and her stated beliefs. The principles and law of this country deny her any right to impose her religious beliefs by force on others. In my opinion she has no standing in this case, she is an elected official and should be impeached by whatever authority there is to accomplish this and denied any other government position for life. And as an example (as in 'we really mean it') spend a non-trivial amount of time in jail. Her lawyers arguments about her violating her belief in God are utter nonsense. This is not a religious freedom issue, it is a founding principles issue.

[william.scherk]

I vowed not to comment on US electioneering until after the Canadian federal election on October 19. I hope this sampling of Kim Davis opinion does not make me look too out of line. From the Seattle Post-Intelligencer ...

Huckabee: “Kim Davis in federal custody removes all doubts about the criminalization of Christianity in this country."

Cruz: “Those who are persecuting Kim Davis believe that Christians should not serve in office . . . or, if Christians do serve in public office, they must disregard their religious faith — or be sent to jail. Today, judicial lawlessness crossed into judicial tyranny. Today, for the first time ever, the government arrested a Christian woman for living according to her faith.”

Walker: “I read that the Constitution is very clear that people have freedom of religion — you have the freedom to practice religious beliefs out there, it’s a fundamental right.”

Jindal: “I don’t think anyone should have to choose between following their conscience and religious beliefs and giving up their job and facing financial sanctions. We are seeing government today discriminate against whether it’s clerks, florists, musicians and others.”

Rubio: “There should be a way to protect the religious freedom and conscience rights of people working in the office. Our nation was founded on the human right of religious freedom and our elected leaders have a duty to protect that right by ensuring that no one is forced by the government to violate their consciences and deeply held religious beliefs about traditional marriage.”

Graham: “The rule of law is the rule of law. That’s what we are. We are a rule of law nation, and I appreciate her (Davis’) conviction. I support traditional marriage, but she’s accepted a job where she has to apply the law to everyone.”

Fiorina: "Kim Davis has to make a decision of conscience. Is she prepared to continue to work for the government? Be paid by the government? In which case she needs to exercise the government’s wishes or quit her job.”

-- I looked for the most tasteless, unfunny and grotesque/exaggerated visual meme I could find. This one topped out a brief search:

[Mikee]

Thank you William. Disappointed in Cruz. Carly nails it. The cartoon: exactly.

[Brant Gaede]

The cartoon message could also read, "I Believe In God."

--Brant

[Mikee]

The cartoon message could also read, "I Believe In God."

--Brant

and believe they are obeying God to impose their idea of God's law on others by force.

[Selene]

District Judge Bunning, explained to the potential contemptnor that:

...Davis’ good-faith religious belief wasn’t a viable defense. “The idea of natural law superseding this court’s authority would be a dangerous precedent indeed,” he said.

Now this Pandora's Box has been opened...

Judge Bunning, I wonder if he is related to Jim Bunning, Hall of Fame (****yep) pitcher and a Senator, explained:

He urged supporters and opponents to remain civil, but said “oaths mean things” and allowing Davis to defy his order would create a "ripple effect." He reiterated over and over that society depends on the rule of law.

The court "cannot condone willful disobedience," Bunning said. "If you give people opportunity to choose what orders they follow, that is what potentially causes problems."

"Willful" is the key to this type of contempt which is conditional.

One defense is the "inability to comply" which makes it not willful.

Attorneys with the Liberty Counsel said she met a legal defense for protection under federal law because of her "factual inability" to issue licenses to same-sex couples. But Bunning disagreed, saying Davis' convictions alone were insufficient to meet the test.

I found out several other facts that I was not aware of:

1) the plaintiffs wanted her to only suffer monetary sanctions, however, Bunning, somewhat logically concluded that that punishment would not be effected because it would operate as a fund raising tool for her supporters and she would never have to take a dime out of her pocket;

2) the Magistrate offered her a compromise if she would allow the other seven (7) clerks to issue the forms and she refused; and

3) apparently, these couples could have obtained these "forms" in any county.

So, essentially, we are going to have a second Scopes situation.

Pass the fried Oreos please...

****Judge Bunning, 35, the son of Kentucky U.S. Sen. Jim Bunning, took the actual oath of office for the lifetime judicial appointment in a private ceremony last month in Lexington.

Nominated last year by President Bush and confirmed earlier this year by the U.S. Senate, Judge Bunning will serve in U.S. District Court for the Eastern District of Kentucky, hearing cases in Covington and Pikeville.

[photo] David Bunning (left) is hushed by his son Lou, 4, as he talks with his father, Sen. Jim Bunning, Wednesday before his swearing-in ceremony in Covington.

U.S. District Judge Karl S. Forester of Lexington administered the oath Wednesday in a courtroom at the Federal Courthouse in Covington packed with Judge Bunning's family, friends, supporters and colleagues.

[william.scherk]

So, essentially, we are going to have a second Scopes situation.

This is somewhat puzzling. In the Scopes situation, a substitute teacher was convicted of teaching evolution, which was a crime (the conviction later overturned on a technicality -- the judge had erred in his penalty fine, which was the purview of a jury). Defense counsel Darrow said:

We claim that the defendant is not guilty, but as the court has excluded any testimony, except as to the one issue as to whether he taught that man descended from a lower order of animals, and we cannot contradict that testimony, there is no logical thing to come except that the jury find a verdict that we may carry to the higher court, purely as a matter of proper procedure. We do not think it is fair to the court or counsel on the other side to waste a lot of time when we know this is the inevitable result and probably the best result for the case.

After his penalty had been decided, Snopes spoke to the court:

Your honor, I feel that I have been convicted of violating an unjust statute. I will continue in the future, as I have in the past, to oppose this law in any way I can. Any other action would be in violation of my ideal of academic freedom—that is, to teach the truth as guaranteed in our constitution, of personal and religious freedom. I think the fine is unjust.

Adam, if the case of Kim Davis has a parallel to the old Scopes case, can you make that parallel a bit more clear to the rest of us? (the best parallel I can think of is that the underlying Butler statute was affirmed as the law of Tennessee -- and stood as law for forty years, until Tennessee rescinded it. So the law in this case -- that marriage rights cannot be denied to same-sex couples -- will stand for forty years or more. Or maybe that the case will become a story with very long legs, symbolizing a clash of religion with law. Or something about the Bible Belt and religious bigotry. [added:] Or, perhaps most likely, that the underlying issue in Scopes -- the teaching of evolution/creationism in state schools -- would not be finally decided for some 78 years with the Dover case.)

-- I watched a live press conference given by Liberty Counsel this afternoon. It was apparent that Kim Davis's lawyers have no answer to Judge Bunning, save that he was wrong. Judging from their work in Uganda, the firm is anti-gay bigotry incarnate.

In a little-noticed quirk of the case, Kim Davis may face a charge of official misconduct, a misdemeanor, for not doing her job (issuing marriage licences in this case). Another quirk is that she is suing the Kentucky governor for making her subject to fines or other penalties, since he ordered her and other clerks to comply with federal law.

Her counsel will of course be on hand when the appeal of Judge Bunning's initial order to comply is finally heard.

-- references on request ...

Edited September 4, 2015 by william.scherk

[Jonathan]

I wonder how the American courts would rule -- or have ruled -- if the government employee were a Muslim who refused to perform her duties on religious grounds. If a Muslim county clerk were to deny a marriage license to a same-sex couple, or if she refused to grant liquor licenses, or if a Muslim who was working as a government inspector refused to inspect pork or alcohol production, wouldn't the government/judicial system be much accommodating than they were with Kim Davis?

Wouldn't the courts likely punish a business, perhaps even quite aggressively, for "discrimination" if it didn't allow a Muslim to avoid parts of her job which required her to violate her religious convictions, despite the fact that she applied for the job with the full knowledge that it required her to perform such tasks?

J

[Brant Gaede]

There's a big difference between contempt of court and a rendered verdict. The judge is a king when it comes to dealing with contempt. But it doesn't travel. So I suspect the Muslim gets thrown into jail. It all depends on the judge with all a judge's personal parameters any of which might kick in in a way that you won't want to.

The principle is as you avoid contempt of cop--take it to court--avoid contempt of judge--appeal. Or you could easily get stomped on. Eventually the law will prevail but you may need a lot of money to make it prevail for you--all the way to the SCOTUS.

I once took it to court and that's why the police lieutenant who had wrongly ticketed me never got to be police chief of Park Ridge, NJ. That was how I did my contempt of cop. I made him look uneducated, unintelligent and a perjurer. All true, but previously not revealed. I was convicted. Fined about $150. That was Feb. 1978. Ironically I hadn't been speeding--which is why I was pissed off. Another time, some years later, a cop on the same police force that got butchered up in the infamous Nanuet, NY mall early 1980s Brinks robbery got me when I had been over the limit. Too bad for him I went to court. You see, in that court the officer acted as the prosecutor. When he was done presenting his case--I made sure he was done by asking the judge--I made a simple statement, as my own attorney doubling as testifying in my defense, to the court. I admitted I was going X mph as ticketed. However, the officer had presented no testimony whatsoever as to what the speed limit was and thus there was no case. Boy! Was he mad!

These days, at least in Tucson and Pima County AZ, you will be railroaded--your innocence doesn't matter. Your best hope is to outright perjure yourself. I've never done that. The reason is the ticketing officer does not appear so you cannot confront the witness against you. The witness is the officer's written report read by another officer. Cross examine that! You can't. You also can't subpoena anyone or anything. If you want justice hire a lawyer and appeal. Maybe that'd work. I don't know. The traffic court is to collect fines. Period. The reason is obvious enough. Too many smart ass defendants found out ways to tie a traffic court into knots with subpoenas, so screw that! In another court the judge actually acted as a witness against me. She said that was me, IHHO, in the speed camera photo looking at it and me and coming to that conclusion. Who cross-examines a judge? "Your honor, what are your qualifications for looking at these photographs and coming to this conclusion?"

It's all fun and games to me. All those tickets were years ago. Time marches on! Nowadays I get angry at more important things. Life and death things*. I long for the old days; I didn't appreciate their luxury.

--Brant

*some are personal, but not all: for instance, Israel is going to hit Iran with 10-15 nuclear missiles because of the feckless pro-Iranian foreign policy of the United States--likely in the next six months

[Wolf DeVoon]

Israel is going to hit Iran with 10-15 nuclear missiles...likely in the next six months

If true, sell stocks, buy Treasurys and gold, stockpile toilet paper, drinking water and ammo.

[Selene]

The real problem is the government issuing any marriage licenses at all. The most I could go along with is the recording of notarized documents privately generated stating so and so are now married to each other.

You could even record a document stating you were married to a tree or a rock or a dog.

Who records? Why a government agency? Why not a private agency created for that purpose?

--Brant

anyway, this will all blow over and the clerks will all bow down or somehow sidestep the matter or get run over

Brant has support for his position from myself and Stephanie Slade of Reason magazine:

Consider that the reason the federal judge in question felt compelled to have Davis jailed is that so few other remedies were available. Davis disobeyed two court orders and a (non-binding, apparently) command from the governor to hand out marriage licenses to all eligible couples. She explicitly refused to carry out one of the key functions of her job. But elected officeholders are not employees and cannot, therefore, be fired.

Kentucky makes no provision for a recall election, so the people would have to wait until her term expired to punish her at the ballot box, and no other official has the authority to remove her from office, even for breaking the law. Impeachment proceedings, while theoretically possible, turn out to be vanishingly rare in that state and, in any case, do nothing to resolve the issue in the short term.

The whole foofaraw should serve as a reminder that putting government in the marriage business was probably a bad idea to begin with.

http://reason.com/blog/2015/09/04/is-it-finally-time-to-get-government-out

[Peter]

So she refuses to sanction a law by complying with the law in her job, yet she was complying with the laws in affect when she got the job. When she got the job the “job description” did not include a law that violates her religious convictions. A hell of lot worse is done in other places.

Consider sanctuary cities. The prime function of government is to protect the lives of citizens. If a police chief or county sheriff enforces the sanctuary city law and then ignores the fact that a criminal is there is he negligent in his duty and liable for damages from a victim? The sheriff cannot enforce both laws simultaneously. He either allows lawbreakers to be there immune from arrest or he arrests them. If he allows them to remain untouched he is putting other citizen’s lives in danger. In contrast to that, not producing a marriage license is trivial.
Peter

[william.scherk]

I wonder how the American courts would rule -- or have ruled -- if the government employee were a Muslim who refused to perform her duties on religious grounds. If a Muslim county clerk were to deny a marriage license to a same-sex couple, or if she refused to grant liquor licenses, or if a Muslim who was working as a government inspector refused to inspect pork or alcohol production, wouldn't the government/judicial system be much accommodating than they were with Kim Davis?

Eugene Volokh has a cogent article exploring some of these issues in great detail. It covers both private sector and public sector suits, accommodations -- and the impact of various 'religious freedom restoration' acts.

When does your religion legally excuse you from doing part of your job?

[Jonathan]

Thanks for the link, Billy.

I see that "Madonna's openly gay brother" has come out with a piece that makes some good points:

http://www.hollywoodreporter.com/news/madonnas-brother-defends-jailed-clerk-820753

What I find interesting is that those who were booing the loudest about Davis's refusal to perform her job's duties and grant licenses to gays, and who are now cheering the loudest at her detainment, have no problem whatsover with the Obama administration's selectively choosing, based not on the laws of the nation but on nothing but personal ideology, which of its required duties it will or will not perform.

J

[Brant Gaede]

It's not laws to the left, but right and wrong actions. If they think an action is right blow off the laws. If they think right action needs a law they'll pass a law or use an extant law. It's all a matter of power and convenience and the idea of this being a nation of laws not men is a no go to them. for they be as gods.

--Brant

[Jonathan]

It's not laws to the left, but right and wrong actions. If they think an action is right blow off the laws. If they think right action needs a law they'll pass a law or use an extant law. It's all a matter of power and convenience and the idea of this being a nation of laws not men is a no go to them. for they be as gods.

--Brant

I agree. The left is currently only pretending to be concerned with laws. They know that it's an effective argument to say that government employees should not be allowed to pick and choose, based on their own personal ideologies, which laws they will or will not implement, enforce or obey, despite not actually believing the argument nor expecting to comply with it themselves. They are enraged about Davis's refusal to grant licenses, but yet they were quite uninterested and nonchalant abou, say, the Obama administration's IRS targeting of conservative groups and refusing to grant them their rightful status. So, the left isn't really upset about the rule of law. They're actually in favor of what Davis did. They're just pissed that she used their own political methods.

J

[william.scherk]

She is let out!