“Your Job or Your Conscience!” The Judicial Gun in Kim Davis’s Rib

People light candles during a religious service at a church in KievKim Davis went to jail for refusing to issue a marriage license to a same-sex couple. President Obama’s press secretary Josh Earnest told us: “No one is above the law, That applies to the president of the United States and that applies to the county clerk of Rowan County, Kentucky as well.”

Now wait a minute. We’ve just seen in the case of United States v. Flaherty that there are some people who are above the law. The law of Massachusetts is you cannot secretly record another person’s conversation (there are exceptions not relevant here) but when Massachusetts state police violated that law they justified it by having a federal prosecutor say that at the time they violated it they were not violating it because they were federal agents and federal agents are not bound by Massachusetts laws.  They take our pay, wear our uniform, but are above our laws.

So maybe I misunderstood Josh when he said that. He means no one is above the federal law. But we know that is also untrue. Take the case of John Morris who admitted that he took money from Whitey Bulger and Steven Flemmi to tip them off about wiretaps and other investigations against them. He was above the law since he decided to cooperate with the federal prosecutors to save his pension so he got away with his crimes. There was no federal judge telling him he had to be punished.

The clerk Kim Davis was told by Judge David L. Bunning who ordered her to issue marriage certificates that “The court cannot condone the willful disobedience of its lawfully issued order. If you give people the opportunity to choose which orders they follow, that’s what potentially causes problems.” As you must know Ms Davis said her religious belief prevents her from issuing these certificates so the judge is saying that if “I order you to do something against your religious beliefs and you refuse then I will send you to jail.”

Those supporting the judge say Ms Davis if she wants to adhere to her religious beliefs she much give up her job. Wow, that’s a pretty tough standard I think. She was elected to the position which she must have put some effort into getting. Now some guy in robes comes along and tells her she must violate her conscience or give up her job   That seems a pretty harsh penalty on a person.

How does it square with the Constitutional provision: Article VI, paragraph 3 that states that: “no religious test shall ever be required as a qualification to any office or public trust under the United States. . . . “ Isn’t the judge imposing on whoever holds the office of clerk of Rowan County a religious test? Isn’t he and every other judge who acts like him saying: “you cannot hold a political office if your religion makes you unable to follow what we say the law is?”

Despite what Josh says the law is not the law. The law is what the judges say it is. At any minute it can change; in fact, it just changed this year to suggest that same-sex marriage is a constitutional right. We are left with a situation that reminds me of a hold up where the armed crook sticks a gun in your ribs and says “your money or your life” Here the judge is sticking freedom in Ms Davis’s ribs and saying, “your job or your conscience.” It never should have come down to this.

There are 120 counties in Kentucky. I assume in almost all same-sex marriage licenses are being issued. It would seem that being the case the judge would direct the people seeking the license in Rowan County to go to a neighboring county. I know some would scream at that minor inconvenience but it would have avoided this predicament.

Even better the judge could authorize another person to issue those licenses. After all judges have put people in charge of school departments, police forces, and other huge entities so it would seem just as easy to designate another person to do what Ms Davis said her conscience forbids her from doing.

I’m just suggesting there are ways to solve the problem rather than having a person violate her conscience or lose her job. It is too bad the judge cannot be more open-minded and accept Ms Davis’s beliefs and work around them. I don’t believe that those who are seeking same-sex marriages are demanding that her name be on their license; rather all they want is a license.

I do get the feeling though that some people want to force Ms Davis to suffer for her beliefs that marriage is between man and a woman, a belief universally held by all government entities in the United States as recently as twenty-five years ago. That is some thing that should be avoided. It is easy to change the law; insisting that along with it one must change their beliefs is not right.

We ought to be mighty careful about situations like these. We must come up with workable solutions that preserve the constitutional right to a same-sex marriage while recognizing some people have strongly felt religious beliefs those marriages are wrong and they cannot in any way show an approval of them. It seems to me it is so easy to accommodate all involved in these matters that we should strive for that outcome rather than having people jailed for their beliefs.



  1. CK,
    You are the ONLY person to have witnessed this “claim” apparently:
    “she claims the right to force everyone else to practice it as well.”
    A few zealots happened to be seated in positions of power and forced their beliefs, no matter how illogical or criminal, on the citizens of the US. Things aren’t “so” just because a vocal minority wants them to be so.

    • No, I’m not. She did not say she wouldn’t issue licenses, which could indeed have been dealt with without sending her to jail. She claimed the right to force all of the deputy clerks to conduct themselves in accordance with her claimed religious beliefs, no matter what they themselves believe or would be willing to do. Perhaps you would understand it better if someone whose religion required people to dress in a particular way required anyone coming into that government office for any reason, whether for work or to transact government business, to dress that way (e.g., wear a yarmulke). One of the clerks wanted to issue licenses but she prevented him from doing so, and he has vowed to defy her if she tries that again (http://www.rawstory.com/2015/09/deputy-clerk-vows-to-defy-kim-davis-and-continue-issuing-marriage-licenses-to-gay-couples/). Now do you get it?

      • Cambridge:

        All I have written about is the judge’s decision to incarcerate the woman rather than coming up with a work around. No one is saying that she was right in what she had done. I suggest the more judicious approach is not to create martyrs if you do not have to do it. If she interferes with the court order which is that it is not necessary for her to be involved in issuing the license and others can do it then I would have no trouble with her being incarcerated. If that happens we don’t have to get into the area of beliefs where I suggest we tread very carefully; I don’t think anyone would believe that her religion teaches that she has a right to disobey a civil order by a duly empowered judge.
        Yes, I do get it but thank you for your input in the matter and allowing me to clarify my thinking..

  2. I must respectfully disagree. Ms. Davis is not content to practice her own religion herself; she claims the right to force everyone else to practice it as well. I have read that at least one deputy clerk was willing to issue the licenses (and you’re also wrong about what she was doing; she refused to issue any marriage licenses at all) but she forbade any clerks from doing so. Now that she’s in jail, five of the six deputy clerks (the holdout is Ms. Davis’s son) are issuing licenses to everyone who meets the legal criteria in a friendly and professional manner. If you thought for even a minute about where this could lead, you would understand that we cannot allow government offices to condition the exercise of their governmental functions on the claimed religious beliefs of the people who hold those offices.

    • Cambridge:

      I didn’t say Ms. Davis was right; I suggested there was a better way to handle the matter than putting her in jail or putting her job in jeopardy. As you note any same-sex couple who wants a marriage license from her office can get it so there is really no issue; the same result could have happened without putting her in jail.

      It really can’t lead in depriving people of their civil rights since the courts can always insure those are taken care of; it can lead to depriving people of their rights of belief if judges start ordering people to do things against their beliefs and putting them in jail rather than looking to achieve the objective without finding a more humane method of proceeding. There are prosecutors who refuse to handle death cases because they do not believe in the death penalty; can a judge order such a person to handle the case or lose his job? There are some public defense counsel who feel they cannot handle child molester cases because of their abhorrence for any person involved in that. Should they lose their jobs? All I am suggesting is that if there is a work around it should be taken rather than making people lose their jobs or forcing them to do something against their beliefs.

  3. Afterthought: The Whitey Bulger movie, “Black Mass”, has opened at the Venice Film Festival. The film and star Johnny Depp are getting rave reviews.

    • Dan:

      I see it is getting great reviews from some but it seems it is not so much the story that is getting them but the acting of Johnny Depp who apparently portrays Whitey as a homicidal maniac which runs up against his character because as best I can tell he never is accused of murdering anyone until his mid-forties unlike Flemmi and Martorano who admit doing it in their early 20s.

  4. Don’t agree, Matt. Davis is openly and publicly defying the law. That doesn’t give the judge much choice in the matter. Davis is also working on her fourth husband. Apparently, she doesn’t listen to the Lord about everything …

    • Dan:

      I agree with everything you say but I like to think that the judges rather than looking to punish would seek the best way to achieve the result that they want. There are numerous examples where judges do a work around to secure what they want as for example when Garrity in Boston worked around the School Committee’s refusal to follow him by appointing others to do the work. Why make martyrs of people when you don’t have to do it.

  5. Thanks, Matt, for such clarity in this matter. The far left does indeed want to see punished Davis and those of a similar mind and belief.