Answering Your Legal Questions about that Kentucky Clerk

I really didn’t want to write more about Kim Davis, the Kentucky Clerk who refuses to issue legal marriage licenses to people she is bigoted against … but she just won’t go away. People keep emailing me about the case.  So let’s answer a few legal questions.

Has she broken the law? No, she has not “broken the law” in the strictest sense.  What she did was refuse to do her job for religious reasons and ordered everyone in her office to refuse too. As someone pointed out, this would be like having a Jewish postmaster who feels that delivering Christmas Cards was against his religion, so he orders all the mail carriers under him to not deliver any of these cards. Or maybe a better example is a Muslim clerk at the DMV who doesn’t believe women should drive and so prevents any licenses to be issued to women.

Kim Davis and the Constitutional scholars she relies upon

Kim Davis and the Constitutional scholars she relies upon

Kim Davis is not following the law. This denied basic civil rights to citizens who were entitled to them. The judge ordered her to give people what they are entitled to under the law. She refused, and got to see the jail from the inside.

But there really isn’t a “law” to allow gay marriage, is there?  Her idiot supporters argue with a straight face that there is no “law” allowing gay marriage and therefore she is doing nothing wrong. I have no idea what this stupid argument means. There is a law providing for marriage, and the Supreme Court has said that the law must be applied without discriminating. There is also no “law” that specifically says a marriage is allowed between different races, yet no one thinks this Clerk could refuse to issue one, do they?

This argument comes from morons like Mike Huckabee, who wants to swear an oath to the Constitution but has apparently never read it. He argues with a straight face that since the legislature never passed a law allowing gay marriage, the Supreme Court didn’t have the right to make the decision in the first place and therefore we can all ignore the Supreme Court’s ruling. This is the kind of argument that we lawyers refer to in our legalese way as “bullshit.”

Can she fire the clerk who is issuing these licenses? Fortunately, one of the Clerks in her office has stated that he will continue to issue marriages to anyone eligible even if she comes back and orders him not to (as she has vowed to do in her loving, Christian way). Can she fire him? Sure, but would it be a legal firing? Probably not. How can you justify firing someone who did their job when you ordered them not to? He’d have a pretty good case against the state for an unjust firing. (Since this is Kentucky, I can be fairly sure these people aren’t unionized like they are in my area.)

Can she cancel the licenses her office has given out already? No. She doesn’t have a job that allows her discretion. If you are eligible for a license, you get one.

She may try, of course, and I think that will not be appreciated by the judge.

Can she go back to jail, and how long can she stay there? She is out of jail now, because the judge assumes she will either do her job or allow others to do their job. If she still refuses to do so, the judge will probably send her back to jail. That’s what Contempt is for — they’re not meant to be punishment, but instead to force people to do what they are supposed to do.

You might recall cases where journalists refused to reveal their sources and were held in contempt. Some stayed in jail for months.

How can we get rid of her? The only way to get rid of this elected person is to impeach her. This is Kentucky, so that’s probably not going to happen, any more than Alabama would have impeached George Wallace when he disobeyed the courts to block black children from going to school with white children 50 years ago. The judge cannot force the legislature to do this; all he can do is keep jailing her if she refuses to obey his orders.

Why are her lawyers doing this? Davis’ lawyers are a bunch of right-wing hacks supported by a lobbying group that is propping her up to use as a fundraising measure. Their briefs have little law in them and read more like the kind of rants you see on crazy blogs that talk about “God’s Law” ruling over secular law. They probably know they have no legal basis for their appeals and so instead are writing what their donors want to read. That way, when the judge rules against them, they can argue that he is “denying God.” Ca-ching! More donations. Appealing to bigotry has become quite profitable lately, you know.

Her own lawyers have to know she will never be successful. A recent legal panel on Fox unanimously was against her, calling her lawyer “incredibly stupid.” (Yes, I did say “Fox” — not a mistake.) When even the experts at Fox News are against you…

Why is there a double standard when Obama violates the Constitution all the time and gets away with it? Seriously, people ask this, and usually their definition of “violating the Constitution” boils down to “does stuff I don’t like.” Some people know in their hearts what the Constitution says and means without that pesky need to actually learn anything about it (in much the same way Kim Davis has done with the Bible).

Is the judge some sort of liberal crusader?  No. The judge is a conservative Republican, appointed by George W. Bush. He probably doesn’t support gay marriage, but he does support the law. You gotta admire him for that.

Quit the damned job already, bigot

I had a nicer headline originally but you know, this better expresses my feelings.

The United States Supreme Court yesterday denied the Kentucky clerk’s appeal wherein she claimed that she should not be forced to perform her job because of her religious beliefs.

As a Christian, she has vowed to obey the Bible, which says gay couples should not get married. (It actually doesn’t say that at all, but that has never stopped True Believers). She is still refusing to do it. appealsAs a clerk, she is supposed to certify marriages and not discriminate, but she is claiming that God’s Law supercedes American law. (It actually doesn’t, but that has never stopped True Believers.)

All the standard hypocritical nonsense is there — for instance, she’s been married herself four times (which actually is prohibited very clearly in the Bible).

Bigotry in the name of religion is still bigotry. If her religious order was against, say, interracial marriage, she would not have the right to deny marriage licenses to interracial couples either. I assume her religion also says that marriages should be between people in her own religion, yet this woman grants marriage licenses to people from every religion and no religion all the time.

No, this is just plain bigotry.

I blame the Hobby Lobby case for some of this, wherein the Supreme Court decided that businesses can have religion (WTF?) and thus discriminate on the basis of it. The Supreme Court views this case differently for one major reason: This is not a business.  Seriously. Businesses always win in the Supreme Court these days.

But back to this woman: I’m sure she has firmly held beliefs. But if those beliefs prevent her from performing her job, then she should resign. Issuing marriage licenses is part of her job requirements.

Can you imagine if you refused to perform part of your job because your religion said you couldn’t do it?  How long do you think you’d keep your job?